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OPENING STATEMENT

by Martina Wilson, business development manager

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YOUR NEWS AND VIEWS JP Morgan punishment fits the ‘crime’; Legal Aid “must not be cut” Warning over Bribery Act; Promoting the brand Law firms report 24% profit slump; Pride in the law

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PSYCHOLOGY Psychological trauma can have effects in many ways; Twice the problems Beware when making decisions for people; Assessing the psyche can help assess the person Problem children; Out of the mouths of babes...can come reliable evidence Criminal cases help explain specialism MEDICAL ISSUES Sarcomas: early diagnosis is crucial Cervical cancer awareness boosted Prostate treatment ‘varies with class’; Nephrologists: the kidney specialists Diabetics’ feet need particular attention; When vasectomy fails

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How broken bones can lead to shattered lives Whiplash injuries that persist will need relevant therapy; Emergency treatment When hernia operations go wrong; Getting it wrong Does ‘acceleration’ really exist?

Dentists urged to adhere to tissue rules; GDC prosecutes bogus dentists

To book your entry or for full details of all our online advertising opportunities email kevin@dmmonline.co.uk Tel: 0161 341 0113

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OUR easy-to-use online directory puts you a mouse’s click away from new clients

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Bristol heart scandal goes on and on Expert opthalmologist gets top business recognition; Heart failure Legionnaires’ disease: the pneumonia that always has a human cause Cystic Fibrosis Trust criticises ward closure; Prosecution witness Mid-Staffordshire: public inquiry will include safeguards for whistleblowers What happens in custody can affect the trial outcome PRESENTING THE EVIDENCE To be a toxicologist takes more than knowing the smell of bitter almonds Asbestos survey changes: MDHS100 is now HSG264 Dangerous driving: often the driver is also the victim of circumstance Gun law in the UK Do you know what your fire risk is?

DNA: what it shows and what it doesn’t Pharmacists’ duties now extend beyond merely dispensing; The crime no-one wants to talk about LIABILITY AND

COMPENSATION Technical experts must have business knowledge Bugs and gremlins: who takes the rap?

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Slips at work attract

compensation How to engineer a solution to a dispute When buy-outs turn sour because of the final figure HIPS are suspended Contracts go head to head Down on the farm –

understanding the business

YOUR MOTORING PAGES 48 Second generation luxury hybrid

takes a leap forward

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Fun, fun, fun; that’s the stylish, sporty TF

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Opening Statement WELCOME to the Summer 2010 issue of Your Expert Witness. The main emphasis in this issue is on evidence and its gathering and evaluation. The expert is called upon to give an opinion on a vast array of evidence of wrongdoing. It could be the nature of a toxic substance used in a crime, the evaluation of how reckless or dangerous a driver was who was involved in a fatal accident, what kind of weapon was used in shooting or who was at fault in an accident.

an opinion on whether a system functions as it should or whether the customer had unrealistic expectations.

Similar expertise is needed where there is a dispute in terms of an engineering contract. In that respect both the computer expert and the engineering expert form part of that large group of experts who value businesses. Part of that function is to estimate what would be needed to render a business back to where it would have been if an event had not occurred, such as an accident to its owner.

INCREASINGLY, the gathering of evidence involves electronics of some kind. An expert may be called upon to analyse a computer or a mobile phone to arrive at a conclusion as to the whereabouts of an individual or what kind of activity they have been involved in. That includes giving juries an insight into the motives of someone accused of possessing child pornography. The Association of Chief Police Officers estimates that 85% of electronic crime units’ resources are devoted to this most revolting of crimes, which is more ubiquitous than most people realise.

MISBEHAVIOUR in the world of medicine is still in the news, unfortunately. Following the events at MidStaffordshire hospital the new Secretary of State has set up a public inquiry. Part of that job of that inquiry will be to investigate ways in which the culture of secrecy in the NHS can be swept away and protection offered to those who blow the whistle.

Another scandal that is still running is that of the deaths at Bristol Children’s Hospital in the 1990s. A recent case was settled in a sum equivalent to £5.5m.

CHILDHOOD seems to be more fraught with danger and risk than ever. A landmark ruling has established, however, that even small children are competent to give evidence against their abusers. The Appeal Court dismissed the appeal of Stephen Barker against conviction and sentence for the anal rape of a child under three years. He will now serve life.

COMPUTER EXPERTS are also involved when there is a dispute between the manufacturer of a computer system and their customer. They may be called upon to give

LAW FIRMS have not been immune from the slings and arrows of the current recession. A report by the Law Society reveals solicitors’ practices are expecting zero growth in the coming year following a fall of 24% in profit per equity partner.

FOR THOSE who are not joining the dole queue or lining up at soup kitchens, however, we offer a couple of ideas on some new wheels. MG is a traditional favourite for summer, with its open road, hood down image, while Lexus have produced a beefy SUV that has the economy and emissions of a much smaller car.

With warm regards

Martina Martina Wilson business development manager

J P Morgan punishment fits the ‘crime’ THE £33m fine imposed by the FSA on J P Morgan Securities Ltd (JPMSL) for failing to segregate clients’ money appropriately “... reflects the amount of client money involved in [the] breach,” according to an FSA director.

Margaret Cole is the authority’s director of enforcement and financial crime. She said: “JPMSL committed a serious breach of our client money rules by failing to segregate billions of dollars of its clients’ money for nearly

seven years.

“The FSA has repeatedly emphasised the importance of ensuring that client money is adequately protected. Despite being one of the largest holders of client money in the UK, JPMSL failed to do so.

This penalty sends out a strong message to firms of all sizes that they must ensure client money is segregated in accordance with FSA rules. Firms need to sit up and take notice of this action – we have several more cases in the

pipeline.”

Under the FSA’s client money rules, firms are required to keep client money separate from the firm’s money in segregated accounts with trust status.

That helps to protect client money in the event of the firm’s insolvency.

In working out the level of the penalty the FSA took into account that the misconduct was not deliberate and that the firm self-reported on discovering the issue – it also immediately remedied

Legal Aid “must not be cut” PLANS TO cut the Ministry of Justice budget by £325m must not include front line legal aid services at a time when the public needs them the most, the Law Society has warned.

The Law Society president Robert Heslett said: “In a time of austerity it is no doubt tempting to see legal aid as an area where cuts could safely be made without arousing voter concern, but this is precisely the time when legal aid services are most needed, to protect ordinary people from unfair decisions about issues on their employment, housing and

benefit entitlement; more than that, to ensure that children receive the best representation in care and family cases.

“The society hopes, in the interests of access to justice, that the necessary cuts come from the Legal Service Commission’s own administrative costs and the fees of a very few extremely well-paid barristers rather than funds required for legal aid. We are urging the Justice Secretary to make savings in areas that will not deny the public basic legal rights.”

A recent YouGov poll revealed public support for legal aid. The research showed that 68% of

consumers backed publicly funded legal advice through the legal aid system for those unable to afford a lawyer. q

the situation. No clients of JPMSL suffered any losses as a consequence of the segregation error, nor was there any incorrect financial reporting by JPMSL for the period 2001-2008. The size of the penalty is equivalent to 1% of the average amount of unsegregated client money held by JPMSL with JPMCB. The firm worked with the FSA in the course of its investigation and agreed to settle at an early stage, qualifying for a 30% discount.

Sally Dewar, the FSA’s managing director of risk, said: “It is crucial that firms are compliant with the FSA’s client money and assets rules. Adhering to these rules not only ensures greater protection of clients but of financial stability as a whole.” q

Promoting Warning over Bribery Act the brand TO HELP solicitors attract new business and retain existing clients the Law Society is repeating last year’s successful national advertising and PR campaign promoting the solicitor brand to the public. With the strapline Your Solicitor – Qualified to Answer, the campaign focuses on the importance of seeking advice from a properly qualified professional.

The advertisements identify situations in which people need legal help with the headline - Help, I need somebody, which will be familiar to most people.

It is anticipated the campaign will generate over 300 million opportunities for the general public to see the message that they should use a solicitor. q

CONSTRUCTION FIRMS in particular need to act quickly to ensure they have proper procedures in place to avoid tough penalties under the new Bribery Act 2010.

Anthony Barnfather, leading regulatory law specialist at Manchester solicitors Pannone, says the construction industry, which has already been the subject of significant regulatory action in respect of anti-competitive practices, is particularly vulnerable to investigations because of the size and number of contracts which they enter into.

Barnfather said: “The Act comes at a time when regulators are under unprecedented political pressure to make examples of individuals and organisations alleged to be involved in corruption. Given the contractor/ subcontractor relationship and the use of agents, the sector is particularly vulnerable to ‘kick-backs’. Previously regulators have concentrated on bribes of overseas agents, but in future will be much more focused on business within the UK. “Authorities, including bodies such as the US Department of Justice, have a wide range of intrusive powers available to them to investigate and prosecute bribery and corruption. These include not only criminal investigations and prosecutions but also

severe civil penalties.

“It is also important to understand that the obligations placed on organisations by the Act are supplementary to those imposed by money laundering and other regulatory legislation, including those under foreign enactments such as the US Foreign Corrupt Practices Act.” The criminal courts have demonstrated their readiness to impose deterrent sentences on corporates and individuals alike. In the past few weeks, a court has imposed a fine of $12.7m in the Innospec case and last week sentenced Mr Robert Dougall (a former executive at a subsidiary of Johnson & Johnson Plc), the first British manager to be prosecuted by the Serious Fraud Office for overseas bribery, to 12 months imprisonment.

Barnfather added: “Penalties are likely to increase when new offences under the Act are prosecuted, as organisations such as the SFO respond to criticism by vigorously pursuing individuals and corporates, and as the courts seek to send a message about how seriously they regard bribery and corruption.

“In this climate of tightening regulation and tough punitive sentences, businesses should ensure that they have proper procedures in place to avoid falling foul of the new legislation.” q

Law firms report 24% profit slump IN MAY THE Law Society’s law management section published the results of its annual Financial Benchmarking Survey. The survey revealed that legal practices are showing little sign of confidence over growth prospects in 2010, with the average growth prediction at zero.

The key findings of the survey, which is sponsored by Lloyds TSB Commercial, reveal the financial health of law firms as they emerge from the economic downturn and prepare themselves for the impact of the Legal Services Act over the next 18 months.

Produced in association with Hazlewoods LLP, a medium-sized, niche accountancy practice specialising in advising the legal profession, it is widely regarded as the annual health check report for the smaller end of the legal profession. The survey provides participating law firms with a clear understanding of their cost base and their main profitability drivers. It focused on three basic performance measures; income levels, profit, and working capital.

The survey reveals a fall in fee income levels in 2009 compared to 2008 across the board, confirming that last year has been the most challenging year for solicitors in recent times. Specialisms such as conveyancing ceased being profitable for many practices, which led to slimmed down business models, a decrease in practice fee income and an increase in redundancies.

Pride in the law

Recessionary effects are most obvious in the median net profit per equity partner, which decreased from £114,078 in 2008 to £86,960 in 2009, a 24% reduction. The data also reveals that practices have not been able to, or not wished to, decrease the number of fee earners at the same level as their drop in income, suggesting that many have taken a longer-term view, learning from the last recession in the early 90’s and remembering that the ability to recruit will harden as the economic conditions improve.

The law management section of the Law Society – a membership association designed to assist those in the management of legal practices – invited members to complete the annual financial benchmarking survey questionnaire and to provide two years data, allowing a direct comparison of both year’s results on a like for like basis.

The responses highlight that short-term working was adopted my many firms while pay increases were rare.

The average professional indemnity cost per pound of fee income increased from 2.2% in 2008 to 2.7% in 2009.

Law Society president Robert Heslett said: “The Law Society annual LMS Financial Benchmarking Survey helps law firms budget and plan for the future. It is particularly relevant for smaller firms. Benchmarking helps firms face up to the challenges of the current market and the new legal services environment by assessing performance against peers, preparing for the shifting economic realities, and considering the benefits of external investment.” q

THE LAW SOCIETY is taking part in the Pride London parade on 3 July and has called on members to join it to celebrate and promote diversity and tackle discrimination based on sexual orientation. Members are invited to join colleagues from across the legal sector for the march, under the banner Equality under the Law. Groups taking part in the walk this year are the Law Society, the Bar Council, the Institute of Legal Executives (ILEX), Interlaw, the Junior Lawyers Division of the Law Society (JLD), the Lesbian and Gay Lawyers Association, (LAGLA) and the Bar Lesbian and Gay Group (BLAGG).

After the march, everyone in the legal sector team is invited to Walkers of Whitehall for a post-event get together. q

Psychological trauma can have effects in many ways

by MARK KILBY RMN BSc (Hons) MSc, cognitive behaviour therapist PSYCHOLOGICAL trauma is often a focus of assessment and intervention in personal injury claims and as such it is helpful to consider the range and complexity of difficulties that might arise as a result of some form of traumatic event. ‘Trauma’ has become part of everyday language, so it may be helpful to define what is meant by the term.

In formal diagnostic terms, in order that an event be considered to be traumatic it requires the person to either experience or witness something (or things) that involve actual or threatened death or serious injury, or threat to the integrity of self or others, and that the person experienced fear, helplessness or horror (American Psychiatric Association 1994).

The consequences of traumatic events can be wide ranging and recovery is often hampered by complications. One way of understanding that is via the ‘ripple effect’ described by Helen Kennerley and Deborah Lee of the Oxford Cognitive Therapy Centre.

This identifies the potential impacts that trauma can have: • On the brain – presenting problems in relation to arousal and the effects of this on memory, sensitisation to stress and the ability to contextualise experiences (ie to put them in the past).

• On the sense of self – difficulties experienced at a brain level clearly have an impact on the person’s view of themselves; for example, seeing themselves as damaged, vulnerable, weak etc.

• At an interpersonal level – the changed sense of self can in turn influence the way they relate to others.

The impact of the effects of trauma can be that the

Twice the problems THE TERM DUAL diagnosis describes people who have severe mental health and drug or alcohol problems.

The mental health problems may include schizophrenia, depression or bipolar disorder, or personality disorders.

Clinics such as The Retreat in York provide specialist treatment for people with dual diagnosis. Members of the multidisciplinary team – nursing staff, occupational therapist, clinical psychologist and doctor – are trained in dual diagnosis treatment. They provide assessments of the mental health and substance misuse problems and help the individual to consider the various issues which may have led to their difficulties. Integrated treatment is then devised for both problems.

Group programmes may include CBT-based groups and groups focused on substance misuse. The emphasis could be on stage treatment via motivational interviewing, with a flexible programme. q

person becomes introverted, easily angered, hopeless with a lack of interest in life and a future, and unable to express positive feelings of love.

• To the social system in which they exist – the issues described above can lead to disruptions in relationships and feelings of isolation. That can be compounded by perceived cultural views of how people ‘should’ be.

The effects of a traumatic event can be complicated by a number of factors. People can be more profoundly affected by events that have a human cause rather than by natural events. That is especially the case if they are the victim of acts of violence.

The person’s previous experience of traumatic events may affect how they respond to the recent trauma, as will their previous life experience generally, eg whether they have developed coping resources; as can a lack of a supportive social network.

The person’s response to the effects of the trauma has an important part to play, for example whether they have learnt to deal with their distress by avoiding situations, either physically or by using drugs and alcohol, or by acts of self harm. In addition, other effects of the trauma may present further challenges to the client.

Those may include physical damage sustained as part of the traumatic event and the constant presence of pain. People can find themselves unable to work and struggling financially. Importantly, the legal process can also be a prompt for distress often over a considerable period of time.

Key to a cognitive behavioural approach to working with someone who is suffering following a traumatic event is to understand in what way those issues are affecting that particular person. That leads to an understanding formed with the client regarding the interactions of their views of themselves, others and the world, their attempts to cope with or avoid distress and their family and social environment.

This formulation allows the therapist to understand risks and to tailor evidence-based interventions to meet the specific needs of the client. Vital to the process is the forming of a therapeutic relationship, since much of what is required of the client can feel counter-intuitive and requires at least a degree of trust. That is especially the case when asking the person actively to think about the traumatic event, knowing that it will probably cause that person distress.

Very often clients feel more distress in the early stages of therapy. Being open and honest at the outset is vital, as is ensuring that the client has a sense of genuine collaboration. That requires that the therapist has the relevant knowledge and experience to convey hope and compassion while encouraging the client to engage actively in their treatment, knowing that it will be difficult at times. It is all too easy for client and therapist to find themselves dealing with high levels of distress and if neither is fully prepared for this it can be damaging for both. q

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Beware when making decisions for people

by DAVID G SMITHARD, consultant in elderly and stroke medicine at Spire St Saviour’s Hospital, Hythe, Kent WHAT IS mental capacity?

To have capacity is usually accepted as the ability to make decisions concerning oneself; to be able to have autonomy over one’s life. That leads on to the question: what is meant by autonomous? Does being autonomous mean the ability to make a decision that can be accepted or does it require the added ability to carry out any related action?

The recent introduction of the Mental Capacity Act 2005 has brought this issue to the fore in health and social care.

Consequently, a decision that is contrary to medical advice cannot suggest that the decision maker does not have capacity.

Accepting that ‘mental capacity’ is having the ability to determine what happens

to one’s body, ie habeas corpus, rather than the ability to carry out all functions, then the next question is how is mental capacity assessed and is an assessment a once-and-for-all event.

Assessment needs to be undertaken every time a person has a need to make a decision. The degree/rigor of assessment will vary depending on the seriousness of the decision required. That is, the assessment required around a cup of tea is different to a decision regarding place of residence, a major operation or taking part in research.

The assessment of capacity needs to assess whether the client/patient has the ability to understand information presented to them, can manipulate

information and then provide a response and understand the consequences of the response/answer that they have provided.

Consequently, any formal assessment needs to assess memory, frontal lobe function and abstract reasoning. No one test will do this fully. Simple tests include the 30-point minimental state examination and some frontal lobe/ executive functioning tests are frequently used as quick assessments.

For any assessment to be valid the person needs to be free from any acute medical/ psychiatric illness that will affect the assessment.

Consequently, anyone with delirium, who is semiconscious or in a coma, has acute psychosis or similar may well be unable to have their capacity assessed.

Others will need help and time to come to a decision.

Information that the

Assessing the psyche can help assess the person

by Dr ELDAD FARHY THE USEFULNESS of neuropsychological assessments to the legal professional is manifold. Many people think of neuropsychological assessments only as cognitive (IQ) testing. Others may think of using these assessments when determining psychological damages in litigation. However, both criminal law and family court practitioners can find that neuropsychological assessments are a valuable tool that can help determine many more issues than is commonly thought.

In criminal law the use of cognitive testing to determine capacity is well known. Few, however, realise that in cases where consent is an issue, assessing not only alleged perpetrators but also alleged victims gives valuable information.

Similarly, there are other conditions besides IQ that can be used as mitigating factors or may negate capacity altogether.

For instance, people with autistic spectrum

disorders (ASD) function at a markedly disadvantaged level in all matters requiring communication and negotiation, or where behaviours can be misinterpreted. Thus, determining whether a party to proceeding has an ASD diagnosis can change a case’s outcome.

In family law cognitive testing is used to determine whether individuals require help with their roles and how best to offer it. However, another aspect of neuropsychological assessments can also offer significant possibilities: personality testing – or profiling as it’s colloquially known – can help determine whether individuals are likely to change if given help.

It is as if cognitive testing determines the “can they?”, while personality testing gives a good indicator of “will they?”

In short, if your clients are likely to benefit from finding whether they differ significantly from their peers (an expectation at the heart of the law), neuropsychological assessments can give many possible answers to the question. q

person has to understand needs to be presented in an acceptable format. That may mean the use of interpreters, speech and language therapists, pictures, sign language or independent parties (relatives or independent mental capacity advocates: IMCA) to help the person come to a decision.

The only time this can be overridden is if the decision to be taken is a matter of life and death and an immediate decision is required.

Once someone has been assessed as not having capacity, then any decision affecting their life needs to be referred to a ‘relevant persons representative’. That may be a family member, a person nominated as having welfare interest under a Lasting Power of Attorney or someone nominated by the Court of Protection, or finally an IMCA. IMCAs are employed by local authorities to act in the best interests of a person who does not have capacity. Any of the above is required by the 2005 Act to act in the best interests of the patient regarding not only treatment, but also to ensure that there has not been any deprivation of liberty.

Deprivation of liberty should not occur without good reason and that includes being kept in hospital or a care home against their will, unless it is deemed to be in their best interest. That decision would require regular review.

The factors that need to be taken into account regarding best interest include assessing for discrimination, relevant circumstances, the possibility of a change in capacity and could the decision be delayed. Has the person been involved as much as possible, beliefs: past or present, not motivated to bring about death of the person, have the views of other family members been taken into account, is there a living will? q

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Problem children Out of the mouths IN AN ARTICLE describing his student days, consultant child psychiatrist Dr Tim Hughes describes a cartoon in Private Eye which showed a male psychiatrist sitting behind his adolescent female patient who was lying on a couch. The patient is wearing Doc Martens, torn jeans, a tee shirt and a smug expression.

The psychiatrist is saying: “So, to recap, your parents are both tossers, your teachers are all idiots and I’m a four-eyed shirt-lifter whose car is being done over as we speak.”

The joke, says Dr Hughes, serves to debunk one of the myths of child and adolescent psychiatry: that the psychiatrist is cocooned in a world of lovable, sweet, compliant children and away from the real world.

In fact, as the Association of Child and Adolescent Mental Health points out, the issue of mental health problems among young people is becoming more and more pervasive.

According to the Association: “Statistics from two recent [2009] reports – the Princes Trust Wellbeing Campaign and the Children’s Society Good Childhood enquiry – have identified depression prevalence rates amongst young people...of up to 27%, as well as a number of wide-ranging societal influences which may be contributing to sub-optimal mental health. The conclusion drawn is that, despite access to a National Health Service, the majority of children and adolescents experiencing problems do not appear to be receiving assistance. q

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of babes...can come reliable evidence ONE OF THE areas fraught with difficulty when dealing with the issue of fitness to give evidence is that of when a child is competent to give evidence in court. Earlier this year the decision of the Appeal Court in the case of R. v. Barker [2010] EWCA Crim 4, brought the issue to the fore.

In May 2009 Stephen Barker was convicted of anal rape of a girl – ‘X’ – who was less than three years old at the time of the offence. She was four-and-a-half years-old when she gave evidence.

According to a report in the journal Criminal Law and Justice Weekly: “X had been living with her mother Tracey Connelly, Stephen Barker and his brother. At the age of two years and 10 months she was taken into care following the unnatural death of Baby Peter.

X made disclosures to her foster carer of sexual abuse

by Barker and subsequently to a child psychologist who was seeing her for the purposes of care proceedings.

Six months after the first allegation she was interviewed on video under Achieving Best Evidence in Criminal Proceedings. The trial for anal rape of a child under 13 was postponed until after the murder trial in the Baby

Peter case. X watched her ABE interview a few days before the trial; it stood as her evidence in chief. She was cross-examined by leading counsel for her mother and for Barker.”

Because of the issues involved in the giving of evidence of so young a child Barker was given leave to appeal against the conviction and the life sentence it brought with it. In January this year both appeals were rejected.

Significantly, the appeal against conviction was heavily predicated on disputing the competency of X’s evidence, as without X’s evidence there could be no conviction.

The Appeal Court judges held that X had been shown to be competent to give evidence and that she had been

Criminal cases help explain specialism HIGH-PROFILE CASES in the media where people accused of crimes are said to suffer from mental illness were used as examples to explain the role a forensic psychiatrist plays within the legal system by Dr Gangopadhyay of the University of Aberdeen at a seminar in April.

He also provided a unique insight into the different elements of his occupation both at the university and in the NHS locally – which include support of prison health services and acting as an expert witness in court cases.

Dr Gangopadhyay said: “The role of a forensic psychiatrist is to work at the interface between medicine and law. We work closely with the legal system providing assessment in cases where the person accused or convicted of a crime has a suspected mental disorder, and also advice on treatment taking into account the risk that person poses to society and to themselves.”

• According to the Royal College of Psychiatrists: “Forensic psychiatry is a specialty concerned with helping people who have a mental disorder and who present a significant risk to the public.

“It covers areas such as: the assessment and treatment of mentally disordered offenders; investigation of the complex relationships between mental disorder and criminal behaviour; working with criminal justice agencies to support patients and protection of the public. Forensic psychiatrists work alongside many other services including the police, probation service, courts, Crown Prosecution Service, prisons.” q

intelligible under cross examination. They reiterated the position that competency to give evidence is not based on age – in stark contrast to Lord Goddard’s assertion in 1958 that: “The court deprecates the calling of a child of this age as a witness...the jury could not attach any value to the evidence of a child of five: it is ridiculous to suppose they could...”

On the issue of the appeal against sentence, the appeal court judgement said: “The sentence of life imprisonment was merited, and further, given the gravity of the two offences, for which consecutive determinate sentences could with every justification have been passed, the minimum term was neither excessive nor wrong in principle.” q

“The role of a forensic psychiatrist is to work at the interface between medicine and law.”

Dr Gangopadhyay

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Sarcomas: early diagnosis is crucial ONE OF THE most frequent types of compensation claim seen by medical negligence solicitors in the UK is the failure to diagnose cancer when it presents. Delayed diagnosis permits the tumour to advance and an advanced tumour will demand more aggressive treatment with the probability of additional complications.

Late diagnosis may also result in the tumour spreading into the rest of the body – known as metastases. These metastases are typically impossible to eradicate and frequently prove fatal.

Sarcomas are malignant tumours which arise from the connective tissues of the body: bone and cartilage or soft tissue and muscle. Unlike cancer of the breast, prostate or lung, sarcomas are rare. However, their rarity tends to lead to late diagnosis, so many patients present with a long history and a large mass.

Soft tissue sarcoma There are many different sub-types of soft tissue sarcoma, some of which resemble the normal tissues of the body such as fat, muscle, nerve, or fibrous tissue.

Patients present with a swelling, which is often painless, that increases in size slowly and can become surprisingly large, especially if it is in the thigh or buttock. Delay in diagnosis is common and usually involves the failure to investigate enlarging lesions or persistent pain in the absence of trauma.

A general practitioner may see only a handful of sarcoma patients during his entire professional lifetime. However,

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he should refer for further investigation any patient who presents with key suspicious features. These include any soft tissue mass that is enlarging, especially if it is painless. If he is suspicious of malignancy he should request that the patient be seen under the two-week-wait rule.

In the hospital clinic imaging is undertaken to visualise the mass, usually by ultrasound. More detailed scanning with either computed tomography (CT) or magnetic resonance imaging (MRI) will be required later. The diagnosis is made by a cutting needle or trucut biopsy and the pathology should be reviewed by an expert.

Once the diagnosis has been established, urgent referral should be made to an expert sarcoma multi-disciplinary team, often at a tertiary centre. Wide excisional surgery, usually with radiotherapy, offers the best chance of local cure. Amputation is rarely necessary.

For the majority of soft tissue sarcomas treated by surgical removal, recurrence, if it is going to appear, will do so within a period of three years (80% probability).

In patients who are destined to develop wide-spread metastases, 80% will do so within a period of two years.

Illustrative case A young man attended the accident and emergency department at his local hospital complaining of what appeared to be a boil. This was excised and sent for histology. The diagnosis was of soft tissue sarcoma but this report was never acted upon. A recurrent 5cm tumour eventually had to be excised two years later.

If the original small tumour had been correctly managed the patient would have been cured. Definitive treatment delayed for the larger tumour recurring two years later may still have achieved local control but was likely to be associated with metastases. Both breach of duty and causation were alleged.

Sarcoma of bone Osteosarcoma is the most common bone tumour and principally affects the long bones in adolescents. Other bone tumours include chondrosarcoma (which arises from cartilage) and giant cell tumours (which are usually benign but which can be locally destructive and occasionally metastasise).

Osteosarcoma presents with bone pain, especially on weight bearing, often associated with soft tissue swelling.

Bony swelling and a limp are usually late features.

Most can be diagnosed on a plain x-ray which shows destruction of the bone.

The initial management of osteosarcoma is with chemotherapy. That has been shown to reduce dramatically the incidence of death from metastatic disease and also serves to shrink the tumour preoperatively. Limb conserving surgery is generally possible and the bone removed is replaced by a metal prosthesis.

Patients who present with metastatic spread have a poor outlook and prognosis. The late occurrence of isolated lung metastases may be managed by removing a wedge of affected lung. Salvage chemotherapy may provide effective palliation but is rarely curative.

Illustrative case A young patient attended the local casualty department complaining of pain following a road traffic accident. Xrays were taken and assurance given that there was no fracture. The subsequent report on this x-ray suggested a bone tumour but no further action was taken. One year later amputation was necessary for a 7cm osteosarcoma.

Correct initial management would have comprised chemotherapy and possibly amputation, but would likely have resulted in cure. However, with a 7cm tumour the risk of metastases was far higher on the balance of probabilities and could result in death. Both breach of duty and causation were alleged.

• Dr Clive Harmer MB FRCR FRCP is a clinical oncologist and cancer specialist. He established the Sarcoma Clinic at The Royal Marsden Hospital, London, in 1974 and treated sarcoma patients until 2005. Since retirement he remains both registered and licensed with the GMC. He has extensive medico-legal experience in the diagnosis and management of all types of cancer, with High Court appearances in London and Belfast. q

Cervical cancer awareness boosted CANCER OF THE cervix – or neck of the womb – is diagnosed in around 2,800 women in the UK each year.

As a result of the National Health Service (NHS) cervical cancer screening programme, that number is around half of what it was 20 years ago (Cancer Research UK, February 2009) but it is still the second most common cancer in women under 35 years old.

Now, awareness of the condition is set to raise among the public, in particular viewers of the popular soap opera Hollyoaks as a new storyline sees a lead character develop the disease.

Steph Cunningham, played by Carley Stenson, is to learn she has the disease after ignoring vital symptoms.

The actress told the website stv.com: “It’s cervical cancer. The storyline begins with a doctor breaking the news to Steph. She’s been told she needs follow-up tests. Her initial reaction is to ignore the letter telling her to go for an appointment with the oncologist. She’s too scared to go.”

Meanwhile, gynaecological cancer research charity the Eve Appeal is working to help disseminate Department of Health key messages about cervical cancer to UK women of all ages, as 55% of cases are diagnosed in women aged between 25 and 49 and 42% in women over 50. q

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Prostate treatment ‘varies with class’ ONE OF THE most serious urological conditions seen in men is prostate cancer. It is equivalent to cervical cancer in women, although it has in the past not had the same profile. That is changing fast, with a number of international rugby stars helping to raise awareness of the disease.

There has, however, historically been a disparity in treatment regimes for the disease among different socioeconomic groups, with men from lower socio-economic backgrounds less likely to be treated with the most common types of radical treatment for prostate cancer than those from more affluent backgrounds, according to a report published in the British Medical Journal in April.

Dr Sarah Cant, head of policy and campaigns at the Prostate Cancer Charity, commented: “Worryingly, the researchers have found that men from less affluent backgrounds are less likely to be treated with radiotherapy or surgery, both common treatment options for an early stage prostate cancer. It is vital that further research is carried out to explore the reasons behind these results.

“Although this new research does not provide any information on how likely a man is to survive the disease, we know that men from less affluent backgrounds have a slightly lower chance of surviving prostate cancer and we urgently need more research to examine whether treatment differences have impacted on outcomes for these men.

“However, it is important to remember that this study looked at men diagnosed with prostate cancer until 2006.

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Since this time new measures have been put in place to ensure that anyone diagnosed with cancer is given clear information about the treatment options open to them.

“Treatment for prostate cancer will be different for each man and choosing the right treatment can be a complicated decision. It is important that all men receive accurate and comprehensive information and have the opportunity to discuss their treatment options fully with their doctor. If men do not receive the information they need or do not feel able to discuss this with their doctor they may be less likely to be able to participate in decisions about how they should be treated.

“We urge any man, regardless of their background, to be aware of their right to information about all the treatment options available to them, so that they can work with their doctor to choose the treatment that is right for them.” q

Nephrologists: the kidney specialists A PARTICULAR specialism within the discipline of urology is nephrology, which is concerned with issues related to the kidney. A consultant nephrologist deals with renal failure, glomerulonephritis, pylonephritis, renal dialysis, diabetic renal disease and kidney transplantation, as well as medication issues involved in kidney disease.

According to medicalcasenotes.co.uk, common issues that may lead to a claim of clinical negligence include medication causing kidney damage, delay in diagnosis of renal disease, mismanagement of renal failure and hypertension issues related to the kidneys.

An expert in the field is Dr Martin Mansell MD FRCP, who is the consultant nephrologist at the Royal Free and UCL Hospitals, London.

In a chapter in Legally Important Clinical Mistakes, edited by Charles Foster (Claerhout Publishing) he says: “The growth in nephrological clinical negligence cases in the last decade has certainly matched that seen in other areas of the NHS and may even be ahead. Patient numbers and expectations are growing, survival is increasing and new opportunities for therapeutic intervention are developing. Diabetes and hypertension are reaching epidemic proportions in the general population and both of these diseases can have significant renal aspects. Surgeons are performing emergency surgery on older patients and the decline in renal function that occurs with the passage of time means the development of acute renal failure, sometimes irreversible, is no surprise. Most renal units carry a heavy workload, with inadequate resource provision, so it is unlikely that clinical negligence lawyers will find their talents underused.”

Dr Mansell reproduces the chapter, entitled Nephrology for Lawyers, on his website at www.kidneylaw.co.uk, which carries comprehensive information for all lawyers with cases involving kidney conditions. q

Diabetics’ feet need particular attention MAJOR LIMB amputation is a serious event for any person; it not only causes disability but also impacts on everyday life, possibly leading to loss of employment, loss of contentment and/or depression. As such the major cause of amputation is an area of interest for all lawyers practising medico-legally.

In the past trauma and cigarette smoking were the major predisposing factors for limb loss; now it is diabetes. Diabetes causes reduced blood flow and nerve damage to the lower limb. Small treatable problems, if ignored, can quickly become major ones.

Poor management by healthcare professionals, or conversely non-attendance at clinics by patients, as well as non-provision of services by healthcare organisations, significantly increases the risk of diabetic foot ulceration.

That ulceration is the precursor to infection and possible amputation.

Prevention is achieved by regular screening for nerve

When vasectomy fails THE COMMONEST reason for cases coming to court regarding vasectomies is because of pregnancy resulting from the vasectomy failing. A number of high-profile cases in the 1990s established the principal that, although damages could be claimed for the pain and trauma of the pregnancy and the failed operation, the costs of bringing up a resultant child cannot be claimed. A number of courts, including the House of Lords in 1998, concluded that the birth of a healthy child should be regarded as “a blessing” rather than an unmitigated disaster.

Substantial damages have been awarded, however, in cases where the failure of the vasectomy results in complications that cause severe pain.

A celebrated case came to court in Edinburgh in 2008. A man from East Lothian had to have his testicles removed following a ‘botched’ vasectomy in 1996. There followed 12 years of severe pain before the case even came to court.

Ruling in favour of the complainant, Lord Uist said: “On a consideration of the whole evidence on this point, I find that the pursuer suffered neuropathic pain...when Dr Dewart inserted an instrument into an unanaesthetised part of his scrotum in the course of blunt dissection during the attempted vasectomy procedure.”

The man claimed £1m in damages against Lothian Health Board. He won his case but the damages were undisclosed. q

damage. Podiatry (chiropody) treatment by highly-skilled and trained podiatrists is the essential component of a good diabetic foot service. Removal of hard skin (callus) is vital as this acts as a foreign body within a shoe and can lead to ulcer formation secondary to high pressure below it; ulcers get infected easily as diabetic patients are unable to fight off bacteria easily.

Abnormal pressure points due to poor foot mobility and deformity, which lead to callus formation, can be treated with orthotic insoles or bespoke shoewear. Prescription of antibiotics and control of the diabetes is also fundamental.

Potential areas for legal action include: • Non-provision of specialist services (which is recommended by the NICE) and subsequent limb loss or damage due to the patient being unable to access specialist services.

• Failure to screen for diabetic nerve damage and simple non-examination of feet.

• Failure to initiate prompt treatment of penetrating injuries to feet.

• Failure to remove callus.

• Failure to refer to specialist diabetes services etc.

Of course, patients have a duty of care to themselves and any potential omission of services from the NHS (or equivalent) or possible negligence from a healthcare professional needs to be balanced with any tendency not to follow advice or non-attendance at clinics.

Dr Mark W Savage, consultant diabetologist, Manchester. q

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How broken bones can lead to shattered lives CONSULTANT orthopaedic surgeons deal with operations and procedures involving the bones and joints. That will include fractures and trauma of the bones as well as reconstructive surgery of the bones and joints. They deal with neck and back injuries involving soft tissue and muscle, as well as ligament injuries and joint reconstruction.

The most common types of fracture they would deal with include those to the clavicle, ribs, scaphoid, humerus, radius, ulna, femur and tibia as well as the small bones of the hands and feet.

Reconstructive surgery involves hip and knee replacements as well as surgery on the ligaments of the knee, ankle, shoulder and hand.

According to the medico-legal website medicalcasenotes.co.uk: “The most common clinical areas/ procedures leading to a claim of clinical negligence are: • Failure to diagnose a fracture.

• Poor outcome following a fracture.

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• Infection following a bone operation or procedure.

• The management of shoulder injuries.

• Missed slipped femoral epiphysis.

• Poor outcome following a hip replacement.

• Disparity in leg length following a hip replacement.

• Poor outcome following a knee operation.”

Last year a paper was published in the Journal of Bone and Joint Surgery by a team led by S Gidwani FRCS, the Hand Surgery Fellow at Princess Alexandra Hospital in Woolloongabba, Queensland. It analysed 130 cases of alleged clinical negligence and received information on the outcome of 97 concluded cases from the relevant solicitors.

According to the authors: “None of those cases proceeded to a court hearing. Overall, 55% of cases were abandoned by the claimants’ solicitors, and the remaining 45% were settled

out of court.

“The cases were settled for sums ranging from £4,500 to £2.7m, the median settlement being £45,000. The cases that were settled out of court were usually the result of delay in treatment or diagnosis, or because of substandard surgical technique.”

(Journal of Bone and Joint Surgery - British Volume, Vol 91-B, Issue 2, 151-156, © 2009 by British Editorial Society of Bone and Joint Surgery). q

Whiplash injuries that persist will need relevant therapy WHIPLASH AND associated injuries are a range of mainly soft tissue injuries to the neck and back that affect a number of occupants of motor vehicles hit from the rear or from the side by other vehicles, as well as occasionally from other causes.

The symptoms from the neck injuries frequently do not develop for several hours and may not have developed until after an early visit to a doctor or an accident and emergency department.

A significant majority of those neck injuries are mild

Emergency treatment WHIPLASH INJURY is one of the commonest areas of personal injury claim which will see an accident and emergency specialist acting in court. The other area is that of accidents at work.

Health and Safety Executive figures show that 137,000 injuries were reported under the RIDDOR regulations during 2007/8, while the Labour Force Survey for the same period shows 299,000 reportable injuries as occurring, a rate of 1,000 per 100,000 workers. Of those injuries, 229 were fatal.

There is a greater tendency among victims of accidents of all kinds to sue for compensation. Soft tissue injuries and fractures sustained in accidents are no longer seen as ‘just one of those things’ and most people who sustain injury through accidents of whatever kind are inevitably seen by the A&E specialist.

It used to be the case that witness statements and expert reports regarding non-serious injury were elicited from GPs, while reports dealing with more serious injuries were prepared by orthopaedic consultants.

However, as pointed out by A&E consultant Colin Holburn in an article in The Legal Executive in 1997, most people who present to accident and emergency departments with such injuries are seen and discharged without being seen by an orthopaedic surgeon and rarely see their GPs for follow up. q

and clear away within a week or two, leaving no lasting ill effect.

A few victims appear to lose their symptoms over one to two months. In my experience those people have not made a full recovery and continue to have persisting tenderness and/or pain at the limit of one or more neck movements.

In my experience of nearly 2,000 whiplash victims with established symptoms, any victim with symptoms lasting more than a few weeks is, on the balance of probabilities, not going to recover completely in the absence of effective treatment. Various published papers show that after a few weeks the majority of the remainder slowly improve over several months but do not improve thereafter. As a result, any symptoms persisting at least six months are almost certainly going to be permanent in the absence of effective treatment.

Numerous doctors state that all whiplash injuries recover over one to two years. I have seen no evidence of that opinion in any published paper except for The Scientific Monograph of the Quebec Task Force on Whiplash-Associated Disorders (Spine Vol. 20, 8S, 1995), which makes such a claim but produces no evidence to back it up. It discussed a few papers, in all of which a substantial number of the victims had long-

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term problems, but produced no paper in which all the victims had recovered.

The report states: “Whiplash-associated disorders are usually self-limited. In a cohort of persons compensated for whiplash injuries occurring in Quebec, the median time to recovery (end of disability compensation) was 31 days. Fifty-five percent of the cohort filed claims for whiplash only; 1.9% of these were still disabled one year after their injury.”

The authors seem to be basing their opinion on the fact that only 1.9% had an absence from work of longer than a year. No evidence was produced to suggest that these people who had gone back to work were symptom free.

A few papers show that a number of the victims have symptoms that worsen with time. I have seen 45 victims for a second medico-legal report. In 44 of those the tenderness was more widespread on the second occasion and in many of them the neck movements were more restricted. I have also seen several of them on at least one further occasion. Deterioration continued and seemed to do so more quickly in the young physically active claimants. As the deterioration progresses, a clinical picture emerges that is virtually indistinguishable from fibromyalgia.

Back pain appears to develop in a significant minority of whiplash victims, usually a few days after the relevant accident. Unfortunately, very little has been published about the problem, but one published paper states: “Patients presenting with backache were never ultimately symptom free.”

Basically I agree with that statement, except that I

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have seen a few victims who settled down within a few days of the onset of symptoms. In my experience, pain and tenderness in the dorsi-lumbar region tends to spread slowly in all directions: upwards to possibly join up with any pain in the neck and upper thorax, sideways as far as the lateral abdominal muscles producing the clinical picture labelled ‘nonorganic’ by Waddell et al and downwards to the pelvis from where it spreads down the back of the legs.

The treatment of whiplash seems to be poor worldwide. Physiotherapists frequently claim – or are given – the credit for improvement in the first few months; but as spontaneous improvement is usually taking place then, it is difficult to evaluate the benefits of physiotherapy at that stage.

There is no real evidence that standard physiotherapy is beneficial after the first few months. I have been using trigger point therapy for over 30 years and I have been experimenting with various treatments for whiplash injuries for a good number of years. The following is my personal unpublished experience.

• Bowen therapy is beneficial when applied within hours of the relevant accident.

• Cold sprays, low-level laser treatment and frequent injections of local anaesthetic etc are helpful in the early stages.

• Ultrasound therapy with the machine at moderately high power is very successful in the later stages but may need to be supplemented by spinal manipulation in any problem that has been present for over six months.

If properly and frequently applied, this regime nearly always results in clearing of the symptoms. q

When hernia operations go wrong ONE OF THE commonest routine operations carried out in general surgery departments is the repair of hernias. Around 120,000 people present with hernias in the UK every year, so it is no surprise that a proportionate number of clinical negligence cases are brought.

During the course of last year a number of cases were reported by law firms concerning clinical errors arising in operations to repair hernias.

One of the most harrowing was reported by Swindon clinical negligence specialists S J Edney.

It involved a 77-year-old woman who was receiving treatment in London for the recurrence of left distal ureteric transitional cell cancer.

It was agreed that her left kidney and ureter should be removed.

It was also agreed that a large incisional hernia on her left side should be repaired at the same time.

The procedure took place in August 2007 and her condition deteriorated

following the operation.

A CT on her abdomen the following week identified a “retained foreign body”. It subsequently proved to be a surgical instrument which had been left behind by the surgeon and had to be removed in a second operation at the hospital the same day.

As a consequence of the mistake the original hernia repair was ‘undone’ and the patient was left with a much bigger hernia and an apron of skin, which was very unsightly and caused her a great deal of cosmetic embarrassment. It was unlikely that she would benefit from any further surgery to improve its appearance.

Fortunately, the hospital admitted negligence and a settlement of £35,000 was negotiated.

Pearson Hinchcliffe represented an Oldham man who had surgery to repair a hernia using dissolvable supporting surgical mesh. The use of dissolvable mesh, which is not permanent, resulted in early failure

of the operation and persistent pain to the client requiring more surgery.

The hospital admitted liability and agreed to pay £45,000 damages.

Darby’s Solicitors also reports a case last year: “Mr H underwent repeat laparoscopic inguinal hernia repair. Following the procedure Mr H suffered from blood in his urine and recurrent urinary infection.

On investigation a staple was identified as having pierced the bladder. The staple was removed and Mr H made a good recovery.

“It was Mr H’s case that the surgeon failed to ensure his bladder was empty before repairing his hernia, and that it was negligent to place the staple into the bladder.

It was Mr H’s case that his injury had resulted in a period of pain and suffering, repeat infections, and requirement for intermittent catheterisation.

“Compensation of £4,000 was agreed following issue and service of court proceedings.” q

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Does ‘acceleration’ really exist?

by Dr ANTHONY CLARKE, consultant rheumatologist IN THE LAST issue of Your Expert Witness, Mark Phillips challenged the concept of the likelihood of clinicians being able to predict by how much an injury could bring forward degenerative change. I would like to take that argument further and challenge the related topic of acceleration of socalled constitutional musculoskeletal problems by trauma.

As a rheumatologist with a special interest in chronic pain I am frequently asked to provide an opinion where an orthopaedic surgeon asserts that there are degenerative changes visible on x-ray and that inevitably the claimant would have similar disabling symptoms within two or three years. On what evidence is that opinion based?

A review of the literature suggests that the concept of acceleration first appeared in North America 30 years ago in state-operated workmen’s compensation schemes. The motivation was clear: such schemes are, unlike the UK benefits system, cash limited. Acceleration was, and is, used as a method of limiting the financial liability of such schemes.

It could be argued that if there is a potential constitutional abnormality, then continuing to undertake heavy work will inevitably lead to disabling symptoms in the foreseeable future. This ignores two factors. The first is the ability of many individuals to tolerate pain and other disabling symptoms to allow them to continue with those tasks they find rewarding.

The second is the increasing skill and reduction in physical effort that comes with experience.

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It may be possible that acceleration does occur in some circumstances, but that needs to be proven and those conditions that can be accelerated clearly defined. The problem, of course, is the considerable logistic difficulty of undertaking such studies. It would require long-term population studies involving, among other things, repeated radiological examination of asymptomatic people. That is, of course, in direct conflict with radiological protection. It could be avoided by studies involving examination of x-rays taken for other reasons which incidentally revealed abnormalities and following up those patients at a later date to see if they had developed disabling symptoms.

We do have some information in that area, for instance the studies by Verna Wright and colleagues in Leeds 40 years ago, looking at the outcome for military and sports parachutists with spinal injuries and professional footballers with ankle damage, which showed a remarkably good long-term prognosis, as did the studies of fast jet pilots who sustained burst fractures of the lumbar vertebrae after ejection.

The concept of acceleration is a bad one and should stop being used to deny claimants their just compensation following injury. The defendant has to accept the claimant as they find them and should not try to avoid liability by the use of a device that has no logical, scientific or clinical basis. q

Dentists urged to adhere to tissue rules ONE OF THE areas of dentistry where patient safety is potentially at risk is in the use of acellular bone or skin products – products derived from human tissue.

Since April last year all suppliers of such products must hold a licence from the Human Tissue Authority (HTA) and last November the HTA reiterated that by calling on dentists and oral surgeons to ensure they are using products from licensed suppliers.

The rules ensure that material which comes from human donors is tested for diseases such as HIV, hepatitis B and hepatitis C before use, and that any products derived from human tissues or cells that may pose a potential health risk can easily be recalled.

The rules apply to all acellular products used for patient treatment, including products derived from human skin used to promote wound healing after injury, or products derived from human bone which may be used in dental or orthopaedic surgery.

The HTA’s statement was aimed at dentists and oral surgeons in particular, as they may not have high awareness of the regulation, to ensure they only

GDC prosecutes bogus dentists

obtain supplies of acellular products from HTA-licensed establishments.

Dr Sandy Mather, director of regulation at the HTA, said: “Earlier this year we reviewed the risks to patients from bone and skin products following a number of cases where patient safety had been put at risk in Europe. The new regulation was announced in February 2009, with a licence application deadline of 6 April 2009.

Nine months after announcing the new regulation, we expect all suppliers of acellular products in the UK to hold an HTA licence: it is unlawful to operate without one. The rules put patient safety first and we would urge dentists and oral surgeons to ensure, if they are purchasing acellular products from UK suppliers, that the supplier holds an HTA licence.”

She continued, “The HTA has provided advice and guidance to those distributing acellular products, including a dedicated training day, online information and answering many phone and email enquiries. We have also widely communicated the requirements through professional bodies, the media and directly to acellular suppliers.”

She added that dentists and oral surgeons that have any questions or are aware of suppliers working outside the regulatory framework, they should contact the HTA. “Where the HTA has evidence that a supplier is acting without an HTA licence, we will take proportionate action.” q

ON 2 JUNE the UK’s dental regulator, the General Dental Council (GDC), announced the successful prosecution of two individuals for practising dentistry illegally. The cases bring the total number of successful prosecutions by the GDC to five in the past six months.

At Lincoln Magistrates Court a Mr Neville Forman pleaded guilty to the offence of holding himself out as being prepared to practise dentistry, in that he was prepared to give treatment in connection with the fitting, inserting and fixing of dentures.

Since he is not registered with the GDC that is a criminal offence under the Dentists Act. In a separate case, a Mr Anthony Woodland pleaded guilty at Bridgwater Magistrates Court on 28 May to the offence of holding himself out as being prepared to practise dentistry.

He also pleaded guilty to unlawfully using a specified title, that of ‘dental technician’. As he is not registered with the GDC both are criminal offences under the Dentists Act. Interim chief executive and registrar of the GDC Ian Todd said: “The GDC is committed to prosecuting those who practise illegally and hopes that the recent series of successful prosecutions demonstrates this objective in action. Those who practise without the appropriate registration should be aware that the GDC is tackling this issue robustly and will continue to prosecute in every appropriate case. The Council’s priorities are public protection and professional regulation.

“If you would like to report someone you believe to be practising illegally you can do so by sending an email to illegalpractice@gdc-uk.org or by calling 0845 222 4141.” q

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Bristol heart scandal goes on and on IN MARCH Michelmores reported the settlement of another claim in the Bristol heart surgery scandal by South West Strategic Health Authority. The settlement figure was equivalent to a £5.5m lump sum.

The latest case concerned CD, a 24-year-old client of Michelmores partner Laurence Vick – who was joint lead solicitor to the Bristol Heart Children Action Group – and Michael Vian Clark.

CD was born with pulmonary valve atresia, a congenital heart defect which meant that insufficient oxygenated blood was able to get to her brain. She needed a combination of palliative treatment to improve her short-term condition and surgical repair to correct her cardiac anatomy.

CD suffered brain damage because the surgeon Janardan Dhasmana constructed a Gore Tex shunt that was too long, so it kinked in the middle, but did not check for that before completing the operation, meaning the blood flow did not increase and CD’s oxygen levels did not rise. As a result she developed white matter damage called periventricular leukomalacia (PVL) due to hypoxia after the first shunt operation. She later went on to have a good anatomical repair of her cardiac defects.

After a successful six-day High Court liability trial there were disputes between the parties about how much care CD would need and how long she would live. The case was listed for a quantum trial in October last year but the defendant agreed to hold a round table meeting to discuss settlement in the May. The public inquiry into the deaths of children at Bristol

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Royal Infirmary became the largest public inquiry in the history of the NHS and was held between October 1998 and July 2001.

The BRI’s chief executive in the period up to 1998, Dr John Roylance, and medical director/surgeon Mr James Wisheart had been struck off by the GMC in that year for serious professional misconduct and Mr Janardan Dhasmana banned from operating on children. Mr Dhasmana is now believed to be practising medicine at a hospital in the Himalayas in India. q

The Bristol inquiry became the biggest in NHS history

Heart failure Expert opthalmologist gets KENNEDY’S report a case of a 50year-old claimant in King’s Lynn, Norfolk, who had previously undergone aortic and mitral valve replacement and was admitted to the local hospital in 2005 with acute coronary syndrome. In course of the treatment an intravenous cannula was inserted into his right elbow. He was discharged on with oral antibiotics for cannula site phlebitis, but was readmitted nine days later with suspected infective endocarditis.

Treatment with IV antibiotics failed to prevent damage to the mitral valve requiring repeat double-valve replacement surgery due to cardiac failure. Claimant suffered severe heart failure affecting function and longevity.

The trust admitted breach of duty in failing to manage the claimant’s phlebitis appropriately, and administer intravenous antibiotics earlier, which caused or materially contributed to the Claimant’s endocarditis and the need for surgery.

The trust, which was represented by Kennedy’s settled out of court in the sum of £325,000 (inclusive of general damages). q

top business recognition MR ARTHUR NYLANDER, a consultant ophthalmologist at East Lancashire NHS who also acts as an expert witness in the subject, has been honoured as a ‘Premiere Member’ by Emerald Who’s Who for Executives and Professionals for showing commitment, leadership and excellence in all aspects of ophthalmology.

Mr Nylander graduated from the Medical School at the University of Ibadan in Nigeria in 1980. In 1982, he moved to the UK and trained in ophthalmology. He was appointed a consultant ophthalmologist for the then-Burnley NHS Trust in November 1996. He was the Royal College Tutor in Ophthalmology for the trust from April 1990 to August 2007.

He was a council member of the United Kingdom and Ireland Society of Cataract and Refractive Surgeons from 2002 to 2008 and has previously been a member of the Surgical

Training Committee in Ophthalmology for the North West Deanery procedures management.

Mr Nylander was appointed clinical lead in ophthalmology in February 2006, a post he holds to date. He is currently an examiner in ophthalmology for The Royal College of Ophthalmologists at the Royal College of Physicians and Surgeons of Glasgow and the University of Manchester.

• Emerald Who’s Who is a serviceoriented company that provides a channel for individuals from all industries around the world to network with peers and business leaders who can relate with one another. The company provides members with the ability to interact with fellow members on message boards and in chat rooms and provide personal and public blogs, as well as share photos and video about their business and products using their own online gallery. q

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Legionnaires’ disease: the pneumonia that always has a human cause LEGIONNAIRES’ DISEASE is a rare but potentially fatal form of pneumonia that has been the cause of a great deal of litigation and even criminal prosecution.

It got its name after an outbreak of pneumonia occurred among people attending a convention of the American Legion in July 1976 at the Bellevue-Stratford Hotel in Philadelphia, where 234 people became ill and 34 died.

“Since many of these people became ill and died after they had gone home to their different states, it took time to recognise that there was a common source,” said Professor John Macfarlane of the University of Nottingham, who carried out research into the history of the disease with the help of a grant from the Wellcome Trust.

Legionella thrives in warm, stagnant water, and people catch legionnaires’ disease by inhaling infected water droplets.

“This is a unique way of catching pneumonia: usually you catch it when ordinary bacteria at the back of the throat drop down to the lung, or it develops from flu,” said Professor Macfarlane in a Wellcome Trust interview.

“But you get legionnaires’ disease from infected water systems.”

The worst outbreak in the UK occurred in 2002 at a leisure centre in Barrow-in-Furness, Cumbria, and killed seven people and made 180 sick. The case resulted

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in convictions for health and safety breaches, although manslaughter charges were not successful.

High-profile cases have been reported among holidaymakers in Spain and more recently on board cruise ships. There have been prosecutions brought this year by the Health and Safety Executive.

In February a care home company was fined £5,000 after putting elderly residents in Manchester at risk of catching the disease.

HSE inspector Sandra Tomlinson issued an enforcement notice after a routine visit revealed the care home did not have the required precautions in place to control legionella bacteria.

More recently, in April the managing director of a Black Country firm was fined after neglecting to control legionella at its site. Despite warnings from water treatment contractors he failed to put a management system in place for the control of legionella.

Dudley magistrates heard how, in September 2008, inspectors visited the site to look at control of legionella bacteria in two cooling towers. The towers were in operation at the time of the visit, but it became evident no management system was in place for the control of legionella, nor had there been for at least eight months.

Also, none of the required test checks or monitoring were being undertaken.

According to the Wellcome Trust: “Unlike pneumonia, which was put down to bad luck or an ‘Act of God’, Legionnaires’ disease could be traced to faulty water systems and someone, somewhere could be held accountable. The impact on legislation has been widespread.

Under civil law, people contracting legionnaires’ disease (or their families) can sue travel companies and hotels.

Cases can also be brought to the criminal court. In Barrow, the source of the disease was traced to the exit of a cooling system at a council-owned arts and leisure facility in the town centre, and the senior architect at the council was tried for manslaughter for contravening health and safety legislation.”

Professor Macfarlane pointed out the similarity with recent legislation regarding HIV. “It’s now a criminal offence to pass on the HIV virus to someone else without telling them that you’ve got it.” q

Prosecution Cystic Fibrosis Trust witness criticises ward closure A CONSULTANT in paediatric medicine was one of the experts giving evidence at the trial in Glasgow of a father found guilty of murdering his own baby daughter.

Craig Jamieson was found guilty at the High Court in Glasgow of the murder of Abbie at the family home in February 2008.

The jury was told how the baby suffered horrific injuries to her head and abdomen which could only have been caused by her hitting or being hit off a hard surface. Fiona Russell, a consultant in paediatric emergency medicine at Yorkhill, told the court that the youngster had bruising to her abdomen and an obvious head injury.

A scan confirmed that Abbie had a serious head injury and a blood clot on the brain. Her mother was told that the baby would not survive, and she later died in her arms. q

THE CLOSURE of a paediatric respiratory and gastroenterology ward at Yorkhill Hospital in Glasgow has raised concerns over the levels of specialist care available for children with cystic fibrosis in the city.

Ward 6b was a 22-bed unit that cared for patients with chronic conditions, including children with cystic fibrosis who also had a particular type of infection called pseudomonas aeruginosa. The unit was closed in April.

According to the Cystic Fibrosis Trust, it is crucial that children with the infection are segregated from others with cystic fibrosis.

Rosie Barnes, chief executive of the CF Trust, said: “We are very worried about the sudden and unexpected closure of this ward.

We have heard that staff were only informed last week and many parents are still unaware of the

situation. We are particularly anxious about where these patients will now be accommodated in the hospital. CF is a very complex condition requiring a great deal of specialist care. We are concerned that they may now be treated by non-specialist nurses who have little or no experience of CF.” A spokeswomen for NHS Greater Glasgow and Clyde said: “We’re implementing our service redesign changes ahead of the new kids’ hospital opening in 2015. Our occupancy rates have indicated we can close the ward and maintain the same level of care for our patients.”

The CF Trust has also reported that CF nurse specialists across Scotland have been asked to spend 20% of their time on general wards rather than treating those with CF. It is encouraging parents/patients to report whether the issues have affected the care that they or their children receive. q

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Mid-Staffordshire: public inquiry will include safeguards for whistleblowers A FULL PUBLIC inquiry into the appalling failings in patient care at Mid-Staffordshire NHS Foundation Trust has begun following an announcement by new Health Secretary Andrew Lansley.

The inquiry is being chaired by Robert Francis QC, who will aim to provide a final report next March. It has the full statutory force of the Public Inquiries Act 2005, including the power to compel witnesses to attend and speak under oath. It will seek to expose how events at the trust went undetected and unchallenged for so long by the wider regulatory and supervisory bodies responsible for monitoring the performance of the trust.

The announcement signals a move from processdriven targets to a focus on patient outcomes, and includes a commitment to robust new safeguards for NHS whistleblowers.

The Health Secretary announced immediate plans to tackle the culture of secrecy, fear and bullying among staff at the hospital identified by previous inquiries, setting out new measures to strengthen protection for NHS staff who whistle-blow. The measures will both encourage staff to raise concerns and ensure that they are listened to when they do.

The Health Secretary also announced that over the coming weeks he will set out further plans to reform the NHS, addressing issues at the very heart of problems at Mid-Staffordshire.

Announcing the inquiry on 9 June he said: “Months ago I promised a full public inquiry into the failing of MidStaffordshire NHS Foundation Trust if I was ever given the opportunity to do so. Today I am delivering on that promise. We know only too well what happened at this hospital – what we need to know is how and why. A full public inquiry will shed light on uninvestigated areas and help us to understand and learn from them.

“The NHS must prioritise the people it serves and listen to the doctors and nurses who work in it. I have today set out how I intend to strengthen protection for NHS whistleblowers. Last week we began to publish more transparent data about the NHS so people can hold their local services to account. And yesterday I set out one

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of the ways we will focus the NHS on improving patient outcomes by reducing hospital readmissions.

“But this alone is not enough. We need a culture change in the NHS that puts patients first: an NHS that listens to patients and responds to their concerns and needs. If patients at Stafford had been listened to and prioritised over processes and targets these terrible failings would have been challenged sooner.”

The chairman of the BMA Council, Dr Hamish Meldrum, commented: “As everyone recognises, the failures in patient care at Mid-Staffordshire must never be allowed to happen again. The BMA has already taken steps to support members with concerns about quality of care, and looks forward to co-operating fully with the public inquiry.”

He welcomed the measures to protect whistleblowers: “It often takes a huge amount of courage to raise concerns about patient care,” he said. “NHS staff who speak out on behalf of their patients should be protected as much as possible, and it is outrageous that they are often either ignored or threatened with a range of sanctions. We welcome this commitment to greater protections for those who raise concerns, and look forward to seeing detailed proposals.” q

What happens in custody can affect the trial outcome TV’S DANGERFIELD is probably the best known UK ‘police surgeon’ (the former colloquial name for the present day ‘forensic physician’) and partly comparable to the USA’s Quincy. The reality, however, is that I spend most of my time examining detainees held in police custody to establish their medical and psychological fitness to be detained, to be charged and to be interviewed by the police.

Forensic physicians also attend scenes of sudden or unexpected death to assist the police in establishing whether circumstances might suggest an unnatural or suspicious death that warrants further investigation. They examine victims and suspects in assault cases; as such they must acquire particular expertise examining and recording the precise appearance of wounds in order to determine whether the account of timing and mechanism of injury is consistent with the observed findings.

Forensic physicians are also crucially involved in the examination of victims and suspects of serious sexual offences and the associated harvesting of intimate samples for forensic evidential purposes. That requires additional specialised training and expertise.

Another function is the examination of those suspected of involvement in drink/drug driving offences, including assessments for clinical evidence of impaired driving and to exclude any medical or psychological conditions that might account for apparent impairment – I once examined a driver involved in a RTA who was unable to walk a straight line not due to the effects of alcohol or drugs but because he had suffered a mild stroke that warranted hospital assessment.

Injury interpretation Medical opinion sought in relation to injury interpretation is probably the commonest reason that an expert medical report is commissioned from a forensic physician. Forensic physicians regularly see fresh injuries, both before and after treatment, in addition to seeing injuries that have started to heal spontaneously in the absence of treatment.

Detailed consideration of the reported history in witness statements is vital in establishing whether or not the account is consistent with observed injuries.

Drink/drug driving cases Forensic physicians are regularly instructed to undertake expert court work relating to drink and drug driving cases.

Substantial case law exists documenting cases where police officers have overlooked reasonable medical excuses for a driver’s inability to provide a specimen of breath or blood. In such cases, where drivers face the charge of ‘failing to provide’, reasonable medical excuses can include anxiety/panic attack symptoms, respiratory disease such as asthma, or in the case of a request for a blood sample, needle phobia. The police ‘drink drive’ procedural paperwork contains specific guidance directing the police to clarify the nature of any reported medical reasons for non provision. The paperwork/procedure relating to drink and drug drive offences is notoriously disjointed and often results in the process being followed poorly, leaving room for procedural errors that can result in cases being dropped.

by DR A. S. RANU MBChB, MRCGP, DRCOG, DFFP, DCH, D.OccMed, DMJ(clin), MFFLM, expert witness in clinical forensic medicine

Questionable fitness for interview Forensic physicians are sometimes involved in expert court work in order to establish whether a detainee may have been at risk in a police interview, ie if anything they say about their involvement or suspected involvement in an offence about which they are being interviewed might be considered unreliable in subsequent court proceedings as a direct result of their physical or mental state. If that is found, then the interview is usually deemed inadmissible.

The police can sometimes overlook a detainee’s psychological, physical or educational learning vulnerabilities and interview a suspect who may have naively declined all legal advice and representation. In such cases it is possible that the suspect does not have sufficient insight into the gravity of the allegation and associated legal implications.

It is equally possible that this group of vulnerable individuals are at risk of making false confessions during interview, particularly if they have a compliant personality and the associated desire to seek approval from others.

Detainees in this category can have considerable difficulties contradicting police assertions when subjected to interrogative pressure in an interview setting.

Another group of vulnerable individuals commonly in police custody are drug and/or alcohol misusers.

Those individuals are at greater risk of having memory impairment in relation to recent events that are possibly the subject of police interview. That group is therefore at risk of mistrusting their own memory or have frank memory impairment to the degree that they are suggestible to the extent that they are gradually convinced or persuaded into making a false confession.

Individuals that are drug or alcohol dependent are also at greater risk of making false confessions fuelled by the fear of suffering withdrawal symptoms in custody. The suspect may give in to the demands and pressure of interviewers due to the false perception that false confession might facilitate immediate gain in the way of release from custody. That group presents a complex challenge to forensic physicians since there exists a window of optimal ‘fitness for interview’, some time between an individual’s initial drug or alcohol intoxicated state upon arrest, and the state of progressively worsening withdrawal symptoms that follow. q

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To be a toxicologist takes more than knowing the smell of bitter almonds

by Dr BOJAN FLAKS PhD DSc CBiol FIBiol FRCPath, of InfoResearch International TOXICOLOGY IS the science of poisons. It is the study of the adverse effects of chemicals on living organisms, including the study of symptoms, mechanisms, treatments and detection of the poisoning of people or animals.

It is defined by the Oxford English Dictionary as: “...that department of pathology or medicine which deals with the nature and effects of poisons.

So Toxicologist, a person versed in t[oxicology]”.

The American Heritage Dictionary of the English Language defines it as: “The study of the nature, effects, and detection of poisons and the treatment of poisoning.”

Definitions of toxicologist include: “One who studies the nature and effects of poisons and their treatment” (wordnet.princeton.edu/perl/webwn)

and “A scientist trained to examine the nature of the adverse effects of chemicals on living organisms and assess the probability of their occurrence” (science.education.nih. gov/supplements/nih2/chemicals/other/ glossary/glossary3.htm).

Those definitions imply that a toxicologist requires considerably more knowledge and expertise than the ability to read a material safety data sheet or to be aware of regulatory occupational exposure limits for chemicals. It is relevant to consider some of the criteria adopted by British and other bodies concerned with toxicology training and accreditation.

In the UK, the Royal College of Pathologists considers toxicology to be a specialty within the wider field of pathology. The College’s Core Training Programme for Toxicology aims to produce trained toxicologists able to provide expert opinions in their specialty option and who should have developed the appropriate skills to lead a department, if required.

Examinations are offered in six subspecialty areas of toxicology: systematic toxicology, histopathology and comparative pathology, mechanisms of toxicology, metabolism and pharmacokinetics, chemical pathology, haematology and immunology, genetic toxicology and

reproductive toxicology. The core training programme covers the areas common to all six options. Over a minimum three-year period the trainee should acquire or develop: 1: Specialised factual knowledge about the mechanisms of toxicity in relation to the chosen specialty option in toxicology; an understanding of how to perform mechanistic investigations; awareness of national and international requirements/guidelines on appropriate studies for safety evaluation.

2: Interpretative skills so that a relevant specialist opinion can be derived from raw data.

3: Technical knowledge, gained from close acquaintance with laboratory experimentation, so that a methodology appropriate to toxicological investigations can be selected, relevant experiments designed and quality control and quality assurance procedures implemented.

4: Research and development experience; to develop and be able to demonstrate a critical assessment of experimental data and published work.

Those skills are important to allow the trainee to contribute, in a team and individually, to the development of toxicology. Familiarity with laboratory organisation, laboratory methods and technical limitations is a prerequisite in determining the quality of experimental data.

5: The life-long habits of learning: reading, literature searches, consultation with colleagues, attendance at scientific meetings and the presentation of their own scientific work as part of their continuing professional development.

In addition the trainee should acquire data management skills, management skills, familiarity with relevant aspects of health and safety requirements, including COSSH, and oral and written communication skills, through publication of papers, production of scientific reports and presentation of data at scientific meetings.

Based on the experience of trainees from academia and industry and in the absence of specific full-time training posts in toxicology, candidates are advised by the College that they

are unlikely to satisfy the training requirements for the Part I examination for MRCPath within less than five years of obtaining their primary academic qualifications.

Toxicology is described by the British Toxicology Society as: “...the study of how harmful effects may occur in humans, other animals, plants and the environment and how they can be avoided or minimised.”

The UK Register of Toxicologists, sponsored by the Institute of Biology and the British Toxicology Society, was established in 1993.

Applications to join the register are open to experienced scientists engaged in the field of toxicology.

Registered toxicologists are required to have an acceptable education leading to an appropriate qualification, together with any additional training required to achieve the necessary competence to practice their profession. Requirements for registration include: • A broad-based written examination such as DIBT, DRCPath, DABT or equivalent qualification, or an honours degree in a relevant science (taken over a minimum three-year period from a UK university or its equivalent) and at least five years subsequent relevant toxicological experience. The applicant: “Must be currently engaged in the practice of toxicology and be of good professional standing.”

• Assessment for suitability for registration, eg by published works, confidential reports or reviews and through evidence of CPD. Those applying must name two senior toxicologists as referees, who can confirm the experience and current employment of the applicant.

A toxicological consultant can provide reports for commercial clients on the adverse health effects of chemicals which the company uses, manufactures or of which it disposes, and might be involved in toxicity testing of a new product. He can interpret and summarise the results of toxicological

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studies for purposes of litigation, serving as an expert witness in litigation involving the alleged adverse effects of chemicals on human health or the environment. He can also advise lawyers on the development of factual evidence and the strengths or weaknesses of the opponents’ case and determine cause and effect relationships.

It should be noted that forensic toxicology is a distinct area of analytical chemistry, rather than pathology. The forensic toxicologist does not generally have expertise in the adverse health effects of chemicals: his expertise lies in the detection and quantification of exogenous chemicals in bodily tissues and fluids. Although he should be aware of the general toxic properties of chemicals, he is not qualified to evaluate their causation of damage to health in the absence of the training and experience expected of a toxicologist.

Similarly, an occupational health and safety expert will be aware that, among other potential hazards, toxic chemicals may be present in the working environment, and will be aware of the current regulations governing their exposure limits. He will be able to determine and advise on

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the degree to which exposure to such chemicals has occurred in a workplace and whether these regulations have been observed. However, following the criteria of the bodies involved in toxicology training and/or accreditation, he will not have the necessary specific expertise to be able to offer expert toxicological advice, particularly on issues of causation.

Those criteria make it obvious that attendance at a short (day or weekend) course in toxicology cannot possibly provide sufficient training. To those exclusions I would add that membership of a governmental committee concerned with toxicity issues, or the tenure of an administrative position in an institution which carries out toxicological activities, do not per se confer toxicological expertise. In addition, the fact that an individual is a qualified and registered physician does not equip him to act as a toxicologist or to enable him to act as an expert witness in toxicology. The Royal College of Pathologists recognises that toxicological expertise requires specialised knowledge and experience not held by pathologists in general.

I am aware from personal experience that it is not unknown for individuals to

have claimed to be toxicologists for the purpose of acting as expert witnesses in litigation, while lacking the necessary qualifications and experience.

Frequently that goes unchallenged because the lawyers involved and the court, as laymen, are not usually aware of the recognised criteria. A lay jury, not unnaturally, is even less likely to be aware of them. q

The essential characteristics of a toxicologist: • Appropriate postgraduate training and/ or experience in toxicology, as defined by the Royal College of Pathologists and the UK Register of Toxicologists in Britain.

• An appropriate degree or qualification, generally at least an MSc or PhD, specifically based on training and/or research and scholarship in toxicology.

• Several years experience in the practice of toxicology.

• Evidence of toxicological experience in the form of publications of the results of original toxicological research, in peerreviewed scientific journals.

• Evidence of an understanding of disease processes (pathology), their mechanisms and causes.

Asbestos survey changes: MDHS100 is now HSG264 JANUARY SAW the publication of the new guide for asbestos surveying. Asbestos: The Survey Guide replaces the previous MDHS100 document. There is a lot more emphasis on clients/dutyholders deciding what type of survey is required, what to expect from a competent surveyor and also what the client should provide to the surveyor to enable the survey to be carried out to a satisfactory standard.

There is new terminology in relation to types of asbestos surveys: gone are the type one, two and three surveys, these have been replaced with management surveys and refurbishment/demolition surveys. That makes it easier to select a survey which is fit for purpose. In the past some clients have opted for type three surveys believing that they are getting the ‘best’ survey, when in fact they were having no refurbishment or demolition works undertaken and as a consequence the client has been unsatisfied with the results. The survey types are defined better with comments being highlighted for management surveys such as:

other. Any items that may be of use to the surveyor, eg existing survey reports, clearance certificates, plans etc, should be passed to them to aid in the survey planning.

Not only tangible items such as existing survey reports or plans will help when carrying out the survey, but also information such as specific access arrangements and an appointed site contact for things such as locked doors will also aid the overall progress of the survey.

The survey report must be clear and concise to the end user. There should be an executive summary of the survey findings, as well as all other relevant survey data in the report. The survey plans must be clear and concise as to where the asbestos is located and also highlight any areas which were not accessed during the survey. The report must be a site-specific document and contain relevant information only. Pages and pages of general caveats are not acceptable; however specific caveats which have already been agreed with the client must be placed into the report and good practice would be to highlight those on the plans. q

Management surveys “All ACMs should be identified as far as is reasonably practicable. The areas inspected should include: underfloor coverings, above false ceilings (ceiling voids), lofts, inside risers, service ducts and lift shafts, basements, cellars, underground rooms, undercrofts (this list is not exhaustive).”

Refurbishment/demolition surveys “Refurbishment surveys will be required for all work which disturbs the fabric of the building in areas where the management survey has not been intrusive. The dutyholder will need to make the decision but probably with help from others.”

Comments such as this make the document easier to use and easier to understand from everybody’s perspective and should encourage better surveyor/client communication, which in turn will make the surveying process better.

There are specific guidance notes for clients as well as surveyors in the form of highlighted summary boxes which highlight specific duties and expectations, as well as advice on how to complete certain tasks.

A major part of the guide now looks at competency and quality assurance of surveyors. The HSE has taken a strong view on that by stating they strongly recommend the use of UKAS-accredited companies or ABICS-certified surveyors for asbestos survey work. If followed, that would ensure that clients will appoint a surveyor that meet certain standards that have already been proven through UKAS accreditation or ABICS certification.

During survey planning the surveyor and client must communicate and reciprocate information between each

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Dangerous driving: often the driver is also the victim of circumstance

by JOHN McGLINCHEY of Forensic Engineering Solutions GET CONVICTED of Dangerous Driving Causing Death, and you’re off to jail.

When you get there, roadsafety pressure-groups will lament the apparent leniency of your sentence and quote statistics about the death toll on the roads and the effect of the bereavement on the immediate families.

What the pressuregroups will not tell you is that the UK enjoys one of the best records in Europe for safety on the roads.

Such organisations cry for zero-tolerance, but are either blissfully or willingly ignorant to the harsh realities of what this charge and related charges actually consider.

Road-safety pressure groups will not tell you that: “...reports written on behalf of the prosecution could be highly selective documents in which the uncertainties and limitations of forensic science evidence are not always revealed...[on the basis that] it is for the defence to draw out the limitations of prosecution evidence...” (Townley L and Ede R: Forensic Practice in Criminal Cases, The Law Society).

In fact, even when the PPS has been put on notice by way of service of a defence expert report that the original PPS opinion is not sustainable, that information is not acted upon.

It is a truism that, while rapists, murderers or robbers set out intentionally to inflict harm upon another, most drivers do not. In fact the vast majority of drivers who find themselves charged with Dangerous Driving Causing Death can be viewed as much a victim of the circumstances as the deceased and the bereaved.

At Forensic Engineering Solutions our emphasis is upon applying a strict scientific test to all evidence. We rigorously apply scientific reasoning to all prosecution reports, and it frequently becomes apparent that most reports provided on behalf of the prosecution are riddled with holes, inconsistencies, inaccuracies and overstatements.

We take a report apart: paragraph by paragraph, line by line, word by word. We dissect the report such that each

individual comment is scrutinised on its own, with its failings exposed.

Only by taking that approach can we assure any defendant be that he (or, less frequently, she) has been adequately and competently represented at an engineering level.

In a recent case, the defendant was driving an articulated lorry at 52mph where the legal limit was 40mph, was caused to brake excessively and jackknifed. One person was killed, two were seriously injured and three more received relatively minor injuries.

The prosecution case was seductively simple: had the lorry been travelling at 40mph there was sufficient room for the driver to bring it to a halt. We were able to show, thorough mathematical analysis, that even at 40mph in the same circumstances the lorry would still have jack-knifed.

The point was conceded by the Crown witness under cross-examination.

The driver was acquitted of Dangerous Driving and the defendant walked away without any blemish on his licence.

In addition to death, we have the charge of Causing Grievous Bodily Injury by Careless Driving.

That charge brings with it two elements: that of the driving and of the injury.

At Forensic Engineering Solutions we compare the sustained injury to the Abbreviated Injury Scale, wherein individual injuries are accorded a numerical assessment, which is an objective expression of threat-to-life. In such cases we always recommend the input of a pathologist, who can then deal with the

individual injury as opposed to the general situation.

For any solicitor representing a client charged with Dangerous Driving, the most important criteria to consider when instructing a collision investigator are competence, experience and an extensive understanding of the requirements of the criminal defence barrister. Any solicitor not attending to these basic requirements is failing to provide adequate representation to the client. q

John McGlinchey has over 25 years experience in the investigation of road traffic collisions. For the past 10 years he has specialised in criminal defence, and has applied himself vigorously to ensuring that his level and extent of knowledge is unsurpassed. In addition to the pursuit of traditional collision investigation studies and courses, he has also studied impact trauma biomechanics and forensic ballistics. The former is the study of the interaction between human and vehicle in a collision event; the latter is the study of objects in flight – which is what pedestrians and motorcyclists become in a collision.

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Gun law in the UK

by DAVID DYSON THE MOST DRAMATIC changes to firearms legislation in the UK in recent times were totally reactive, resulting from public outrage following the murderous sprees of Michael Ryan in Hungerford and Thomas Hamilton in Dunblane. The recent tragic events in Cumbria have once again thrown firearms legislation into the forefront of public scrutiny; whether further restriction will follow once again remains to be seen.

The shocking nature of the crimes committed by Ryan, Hamilton and now Derrick Bird quite rightly leads to consideration of how such terrible acts can be prevented, but the same concerns apply to less well publicised types of firearms crime.

A blank-firing revolver made by a large Italian company has recently been the focus of police attention. The Bruni Olympic 38 revolver is made with a completely blocked barrel and partially blocked cylinder chambers, preventing the loading and firing of bulleted cartridges. However, many Olympic revolvers have been converted to fire projectiles often very crudely, allowing use by criminals.

The Firearms Act 1982 controls imitation firearms which are ‘readily convertible’ into firearms: those which can be converted without any special skill in the adaptation of firearms and without using tools other than those in common use in people’s homes. It was previously thought that the conversion of Olympic revolvers required either skill or tools of a degree which took it beyond the definition given in the 1982 Act. A reappraisal has concluded that the tools are easily found at well-known retailers, with the consequence that the Olympic has suddenly become readily convertible.

Anyone now in possession of such a revolver is potentially facing a mandatory five-year custodial sentence.

The basis of the change of classification appears to be the increasing availability of power tools which, perhaps 20 years ago, would only be found in engineers’ workshops.

Although only Olympics have been mentioned at present, there seems a danger that, if the definition of a ‘commonly used’ tool has changed, then other types of blank and imitation pistol might also have drifted into the class of ‘readily convertible’ without the dog trainers, re-enactors and race officials who might use them being aware.

The 1982 Act allows a defence if the accused did not know, and had no reason to suspect that the imitation firearm was readily convertible. q

ywp91 david dyson

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Do you know what

your fire risk is?

by GARY WHITWORTH FIFireE FIFSM FIMgt MIFPO MIIRSM Dip CFPA[Europe], IFSM-accredited fire risk assessor and registered expert witness THE REGULATORY Reform [Fire Safety] Order 2005 (known briefly as ‘the RRO’) came into force on 1 October 2006. The delay in its introduction was due mainly to the availability of a large number of Guidance Documents which covered the whole range of different types of property embraced by the legislation: offices, shops, factories, warehouses, sleeping accommodation (including flats), residential care premises, educational premises, small and medium-sized places of assembly (including places of worship), large places of assembly, theatres, cinemas and similar premises, open air events and venues, healthcare premises and transport premises. There are very few properties outside the scope of the Act; they include ‘single private dwellings’, ‘aircraft’, ‘locomotives or rolling stock’, ‘mines (other than buildings on the surface of a mine)’, ‘borehole sites’, ‘offshore installations’ and ‘ships and normal ship-board activities’.

The law requires the ‘responsible person’ running a business to carry out a fire risk assessment, and make an emergency plan. If five or more persons are employed, or if there is a licence under an enactment in force for the premises, the fire risk assessment and emergency plan must be recorded and be available for inspection by the fire authority.

There are many small businesses, such as the typical single-floor corner shop or small off-licence, which should be able to undertake a fire risk assessment themselves without resorting to employing a specialist fire consultant. Should your business premises be more complicated and involve several floors and include a significant number of employees, along with fire risks about which you are not completely certain, it is best to seek the services of a professional fire consultant to produce a proper comprehensive Fire Risk Assessment Report and emergency plan.

The point to bear in mind is, at the end of the day who will be answerable if something goes wrong? While it is certainly good practice for owners and managers of premises subject to the RRO to carry out their own fire risk assessment, it is still wise to ensure that you have not missed something about which you are not an expert.

Your fire risk assessment and emergency plan should: • Identify all the significant fire hazards.

• Identify the ‘relevant persons’ who are at risk from each fire hazard: that may include any person who may lawfully be on the premises (eg the public), and even any persons who may be in the vicinity of the premises (eg passers-by).

• Identify any group of persons who are especially at risk.

• Take into consideration any dangerous substances on the premises (eg chemicals, gas cylinders, solvents, oxygen and any explosive atmospheres created by dust).

• Consider the question of arson or incendiarism.

• Evaluate if existing fire control measures reduce the risk to a tolerable level and determine what additional measures are required (and include the action required by when and by whom?).

• Assess the means of escape from the premises in case of fire.

• Assess the means of detection and giving warning in case of fire.

• Assess the means of fighting the fire.

• Assess the emergency plan and include specific responsibilities and actions.

• Assess the adequacy of fire training for staff, and information on fire precautions for staff.

• Assess the adequacy of maintenance and testing of fire safety equipment, and the recording of this in a Fire Safety Log Book.

Since the RRO came into force there have been numerous cases of fire officers throughout the country refusing to accept a fire risk assessment which they consider to be either inadequate or insufficient. There have also been some very heavy fines imposed on premises where contraventions in fire safety practice have been discovered by fire officers.

Appointing a third party Probably the most important facts to establish when considering the appointment of someone to carry out a fire risk assessment are: • Is the individual or company properly insured? Can they produce proof of their professional indemnity insurance, their public liability insurance and, if it is a company, their employer’s liability insurance?

• Is the fire consultant adequately qualified and experienced?

Do they have professional fire qualifications (membership of a professional fire institute, examination certificates from a recognised university or fire college CPD certificates etc?

• Are they registered as an accredited fire risk assessor by a professionally recognised fire organisation?

• Have they ever been in court to represent a client in a fire-related prosecution?

• Are they registered as an expert witness?

• What type of Fire Risk Assessment Report will be used? Does it comply with a British Standard and does it include an action plan identifying any deficiencies?

There is currently a Fatal Accident Inquiry on-going where a fire risk assessment inspector has admitted that he failed to inform his care home clients (where 14 residents died) that his report omitted information that might have helped prevent or lessen the impact of the fire on their premises.

It took a serious fire (with six deaths) in a London tower block for it to come out that hundreds of similar blocks of flats throughout the UK had no fire risk assessments.

• Gary Whitworth is the former Chief Fire Officer of Kent Fire and Rescue Service and currently managing director of FireStat International Ltd. He is the holder of four European Awards for fire service liaison, a former president of the Institute of Fire Safety Managers (IFSM), former vice-president of the Institution of Fire Engineers (IFE), governing council member of the Commonwealth and Overseas Fire Services Association and the Chief and Assistant Chief Fire Officers’ Association, and former member of various British Standards and Home Office committees. He holds the Kent Fire Brigade Medal for Outstanding Service.

He was appointed chief fire safety advisor to the Anglo-French Channel Tunnel Safety Authority during the construction phase of the development. q

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DNA: what it shows and what it doesn’t Dr ANDREI SEMIKHODSKI of Medical Genomics Ltd looks at some statistical misconceptions THE PROBATIVE value of DNA evidence is reflected by the value of the probability of a random match between DNA profiles from the crime scene sample and the accused.

Any probabilistic approach introduces uncertainly into the interpretation of scientific evidence which, if not properly understood, can give rise to misunderstanding of the evidence and inaccurate conclusions as to what the evidence really means. Some of those errors affect the way random match probability is calculated; others affect how DNA data is interpreted in court.

When DNA evidence is examined in court there is one issue that is crucial for determining how much weight should be given to it in the proceedings. The issue, though simple, is not trivial: is it possible to relate the DNA match between the accused and the crime stain, with the probability of the accused being the perpetrator of the crime he is being tried for? It is only for the judge and jury to assess the link between the evidence and the probability of guilt and not in any way the job of the prosecution DNA expert or the prosecutor to comment on it.

For example, when using DNA evidence in arriving at the decision as to the guilt of the accused, the jury may easily confuse the probability that the accused’s DNA profile would match that of the criminal, given that he is innocent, with the probability that the accused is innocent, given that their

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DNA profile matches that of the real criminal. That leads to probably the most common error of misinterpretation of evidence, called ‘the prosecutor’s fallacy’.

The prosecutor’s fallacy is a specific case of a logical error of the transposed conditional which arises when the probability of DNA evidence under a particular hypothesis is confused with the probability of the hypothesis given DNA evidence. That fallacy tends to favour the prosecution.

There are two types of the prosecutor’s fallacy – the source probability error and the ultimate issue error.

The source probability error happens when the probability of DNA evidence is equated with the probability of the accused being the source of the crime stain sample. Equating these two probabilities tends to exaggerate the strength of the prosecution hypothesis and is detrimental to the defendant.

When the source probability error is extended to comment on the probability that the accused is guilty of the crime he is tried for, the prosecutor commits the ultimate issue error.

For example, when a probability of a random match between the accused and the crime samples is given as, say, 1 in 100 million, it may erroneously be interpreted as meaning that the probability of the accused being innocent is also 1 in 100 million. That type of reasoning also happens in the court room and has also been the subject of several successful appeals.

Concludes in the next issue. q

Pharmacists’ duties The crime no-one now extend beyond wants to talk about merely dispensing Our client says she did not know that she was shoplifting because of the effects of the prescribed diazepam and the alcohol she took. Can you provide a report?

Could the witness’s memory have been impaired due to the medicines she has been prescribed?

Could my client’s erratic driving be due to drug induced automatism?

A PHARMACIST’S DUTY of care has become more onerous over time; certainly since the Bolam and Bolitho judgments. Over the past few years pharmacists have established a clinical role in healthcare which is wider than simply that of supply. That greater professionalism makes them more vulnerable to scrutiny; keeping up-to-date is even more demanding, and those who do not may expose themselves to claims when problems arise.

Professional standards have improved, notably with the keeping in the pharmacy of Patient Medication Records, which allow the pharmacist to review the patient’s medication before dispensing a new prescription. That should avoid interactions with medicines still being taken, but perhaps initially prescribed some time ago.

Other responsibilities now accepted as the norm include checking patients’ anticoagulant records when dispensing warfarin. Since April 2008 community pharmacists in England and Wales should, before dispensing repeat prescriptions for anticoagulants, review the patient-held record and confirm with the patient the date of the last clinic appointment, the INR test results and the current dose.

Standards of care have extended, with guidance to the profession coming from many bodies. They include the NHS, National Service Frameworks, NICE, National Patient Safety Agency and professional organisations such as the British Oncology Pharmacy Association, which recently produced guidelines for pharmacists dispensing cancer medicines.

In a recent case involving a prescribing error we were able to point to the requirement set out in the pharmacists’ Code of Ethics which requires that “...every prescription must be clinically assessed by a pharmacist to determine its suitability for the patient”. That process must involve a consideration of the dose. Where the dose was obviously wrong the pharmacist must also bear some responsibility for the patient receiving (and taking) the wrong dose of a medicine.

In a separate case we were able to show that a combination of two medicines prescribed for a patient might interact so as to make the patient unsteady and likely (as happened) to fall and injure himself. The second medicine had only been prescribed to treat the rash caused by getting the dose wrong on the first medicine.

On another occasion we were able to show that the actions of a pharmacist in dispensing an incomplete and confusing prescription without reference to the prescriber were contrary to guidelines and to normal practice, were inconsistent with his duty to the patient, and therefore were negligent. q

CHILD PORNOGRAPHY is perhaps the most emotive of criminal offences. ACPO statistics suggest that 84% of the overall case load for high tech crime units across the UK involves indecent imagery and child abuse investigations. It is often seen as the ‘dark side of the web’ and as a result is perhaps the least discussed.

In cases of that nature the courts are concerned with the question of intent, creation, possession, dissemination, and the social context of any wrongdoing. As most investigations of that nature involve computers, data storage devices and internet history records, the role of the technology expert witness is crucial.

In the case of R v OLIVER (2003), the Sentencing Advisory Panel (SAP) adopted a 1-5 grading system of severity of offence: Grade 1: Images depicting nudity or erotic posing, with no sexual activity Grade 2: Sexual activity between children, or solo masturbation by a child Grade 3: Non-penetrative sexual activity between adult(s) and child(ren) Grade 4: Penetrative sexual activity between child(ren) and adult(s).

Grade 5: Sadism or bestiality Generally the custody threshold is reached when an individual is in possession of material graded above level two, although the courts will also consider other factors such as the quantity of images present, the quality of the material, the duration for which the material has been retained, whether there is evidence of distribution, and whether the individual has been responsible for actually creating the material. Sentencing can range from a fine or conditional discharge to nearing ten years imprisonment for the most cruel crimes.

In most cases, both prosecution and defence will agree on the existence of indecent material. However, this is usually only half the story and the more important questions are how the material got there, when, whether it was accessed or deleted etc.

This is where the forensic analyst can assist the court – providing insight and context to the evidence – so that the Judge and jury can make an informed decision. q

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Technical experts must have business knowledge THE EXPERT witness in cases involving IT must have a number of areas of expertise: not only must they be able to give expert opinion on the technological issues themselves; they must also have some understanding of the type of business the IT system at issue is designed for.

Such was the case with EDS, the electronic design company, and NATS, the air traffic control agency. EDS’s main expert Dr Mark Vaughn brought in Bob Briggs, an electronics expert with a particular expertise in air traffic control. It was Bob’s first court case as an expert witness.

His involvement started in March 2001 and continued until the case settled in April 2002. During that time he was intensively involved in forensic analysis and providing opinion on a range of issues, although focusing mainly on the project management and development processes used by EDS and the feasibility of their plans

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for completing the work at termination.

He attended court on several occasions and assisted the barristers on some technical matters. The case was heard by His Honour Judge Toulmin CMG QC and settled after 43 days in court just prior to experts’ evidence.

The case appears to have launched Bob’s career as an expert. It was followed by an arbitration before His Honour Judge Humphrey Lloyd QC. In that case he was instructed in his own right by CMS Cameron McKenna as the programme and project management expert on behalf of the respondent. The case involved, inter alia, supply of point of sale terminals, back-office accounting and associated software as part of a large consortium-based PFI project. Bob again worked with Dr Vaughn, who was the instructed technical expert in the case. He was fully responsible for conducting delay analysis and

providing expert opinion and reports on the causes of alleged delays in the programme.

Bob’s third instruction was on behalf of football club West Bromwich Albion in its dispute with Cambridge Online Systems Ltd. The case involved supply of a ticket office system, coupled with a back-office financial accounting system using Microsoft's Navision product. Bob submitted an expert report on issues related to product performance and reliability.

The case ran from July to November 2006 and was settled through mediation. q

Bugs and gremlins: who takes the rap?

TONY SYKES of The IT Group has been instructed in many groundbreaking IT disputes. Here he sets out some observations and opinions on the types of disputes, why they occur, and gives some practical advice on how to manage the cost of expert assistance.

FORENSIC COMPUTER analysis and early document review can sometimes seem expensive in the early stages of an IT dispute; but in reality, in many cases, the really high costs occur later in the process and having the results of forensic computer analysis and a well researched expert opinion on the documents and disclosure can lead to huge savings in the long run.

In IT contracts for bespoke development, the expectation of both parties is often much better aligned at the outset. There are few projects where the parties enter the contract and start the project design work in the knowledge that what they are designing or what is being designed for them simply will not satisfy the requirement.

Problems usually start to emerge as the project progresses on two key fronts: the detailed interpretation of the requirements and how these translate in real terms to people operating the system, and the timescale to implement the project. Neither of those is probably a great surprise, but from experience of a large number of high technology disputes, to me the most surprising aspect of the development of disputes is the fact that no-one notices or is able to interpret the reports that tell them that the project is going to under-deliver in terms of practical functionality or is simply going to be unacceptably late or over budget.

When an IT dispute becomes frustrated and a dispute looms, the areas of dispute are generally issues that the project team has suffered with for many months.

The effect of that is the parties are probably already in an entrenched position and this can skew the early positions taken by the parties and their legal teams. The project team, having lived and breathed the detail of the project, often for many months and sometimes years, have a great understanding of the programme, tasks and deliverables but are simply too close to the project to have a balanced view of the terms of the contract or the general wider aspects of client expectation, project deliverables and cost. Conversely, some of the key stakeholders are too far removed from the reality and are not

afforded a practical means to be sufficiently involved to make considered judgments or to offer reasoned and helpful advice.

It is a common reality in IT projects that the client has much higher expectations of delivery than could ever be delivered by technology alone and this frequently translates into a dispute where blame is laid firmly at the door of the supplier. In reality the successful delivery of large bespoke IT projects requires significant buy-in from the client, not just at project level where it is usually evident in abundance but also in the business itself, deep in the roots of people, processes and culture.

Engaging the services of an IT expert with expert witness experience in major cases early in a dispute can often put a project back on track and avoid litigation.

If litigation cannot be avoided then the objective and dispassionate views of an independent expert can sort the wheat from the chaff and thereby highlight the areas of the dispute that present the strongest case technically and provide the party with the most leverage for dispute resolution at mediation or arbitration. q

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Slips at work attract compensation A SHOP WORKER who suffered a serious back injury after her employers ignored complaints about a dangerous staircase has received £5,000 in compensation. The 55-year-old woman, from Hereford, was forced to take two months off work as a result of her injuries after she fell down a spiral staircase while working for Past Times in the town. She needed physiotherapy after damaging her back and hip.

The woman had worked for her employers for more than seven years before the accident, in January 2008. The shop had recently changed locations to a listed building.

She was coming down the stairs after visiting a storage room when she slipped.

She fell despite holding onto a handrail but a later inspection by an environmental trading standards officer found the treads on the staircase were inadequate. While structural alterations couldn’t be made to the staircase as it was a listed building, improvements could have been made. In fact, despite complaints to the employers before the accident by the woman and her colleagues, nothing had been done.

As her husband is a member of the Public and Commercial Services union, she was covered by its personal injury scheme. Following the accident she contacted the union which instructed its lawyers, Thompsons Solicitors, to pursue a claim for compensation.

Thompsons secured an out of court settlement after Past Times admitted liability. The shop has now put

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rubber edging on the stairs to prevent a similar accident from happening.

Martin Fell from Thompsons Solicitors said: “Adapting listed buildings to bring them up to modern health and safety standards is a challenge, but in this case simple and not very costly measures would have avoided [her] suffering for the rest of her life. A listed building is no excuse for ducking out of basic safety obligations.”

In another case a nuclear plant surveyor suffered a trapped nerve following a workplace accident and received a substantial sum in compensation after help from her trade union.

The experienced health physics monitor was surveying a room in the nuclear processing plant when she lost her footing on liquid which had been spilt on the floor.

She saved herself from falling to the floor by hanging onto a metal gantry but in doing so trapped a nerve in her back. She was forced to take more than 10 weeks off work as a result of her injuries which needed extensive physiotherapy.

Following the accident she contacted her union, the GMB, which also instructed Thompsons Solicitors to pursue a claim for compensation.

The claimant said: “This accident has meant I have missed out on a significant promotion and I now have to work on restricted duties. I worry about my future employability as I’m less mobile and unable to lift meaning I am restricted in the type of job I can do in the future.” q

How to engineer a solution to a dispute ENGINEERING projects are the most complex activities undertaken by man. They can involve hundreds or even thousands of people, many organisations and very large sums of money. Major infrastructure projects, such as the construction of an airport, railway or shopping centre, require many companies to work together.

These large projects result in correspondingly complex contractual arrangements and inevitably result in disputes. Those disputes arise from interpretations of the scope of work, variations and late delivery. The reasons for the disputes usually have a technical component and given the multi-discipline activities and the use of specialists it is normal for the managerial parties to not have a full understanding of the problem.

Timescale and monetary

pressures can be immense and, coupled with the industry machismo and a misunderstanding of a problem, can lead management into undertaking unwise litigation.

That is where an expert witness can provide a sound, unbiased opinion that can be used by both parties and the court to settle the dispute.

An area where an expert could assist would be the interpretation of statutes and

regulations. It is common for a problem to involve multiple codes such as the building, wiring and machinery regulations.

Those regulations are usually referenced in the project specification and therefore form part of the contract. Due to frequent updates and the sheer volume of regulations it is quite likely that the person drafting the specification is not familiar with the latest codes. It may therefore be that the design is in breach of the regulations! The party interpreting the specification has a duty to point any breach out.

The manufacturer cannot build a machine that is in breach of the regulations, but in not doing so is in breach of the contract requirements. If the work directly or indirectly

caused damage the breach in regulation would be evidence of negligence.

An expert could ascertain whether the breach caused the damage and if so advise on liability.

Poor drafting during the contract stage or weak change control results time and again in disputes over the scope of work.

Work is often carried out without agreement as to time and costs; therefore claims and counter-claims result. By unpicking the correspondence and actions from minutes of meetings the expert witness can demonstrate to the parties the likely standing at court and allow them to resolve the dispute without incurring further unnecessary costs and delays.

A second opinion from an independent third party also deals with the problem of employees and contractors being economical with the truth.

A court room is not the place to find out that it’s your company at fault, and that as well as paying compensation you will be liable for all the costs. q Eur Ing M R Gornall BEng(Hons) CEng MIET MIMechE

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When buy-outs turn sour because of the final figure AS AN ACCOUNTANT, there are few commercial matters which are more disappointing than to see a management buy-out descend into a dispute between buyer and seller. After all, the transaction nearly always starts with the best of intentions; the existing owner is desirous to sell and is often anxious to see the management team which has helped to develop a business have the opportunity to take it on and profit directly from their hard endeavours.

The existence of a ready-made purchaser has other obvious benefits to the seller: certainty, the lack of selling agent costs and a saving in time among them.

For those reasons the terms offered to the purchaser are often beneficial. Either the purchase price is discounted or the terms for payment of the price are extended.

But those very factors contain within them the elements which can often lead to disputes. Firstly, there is a lack of detachment between the two sides. The purchaser is too inclined to take the word of the seller, the former boss of the business, and reluctant to seek independent advice concerning the value to be placed on the business or the terms that are being offered.

Secondly, the two sides are over familiar and do not treat each other with the healthy scepticism which is

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by DAVID BUNKER

prudent between seller and purchaser. Thirdly, they do not commit to writing as much of their agreement as they ought. Many disputes arise between well meaning parties who both thought they understood what the other meant, only to be proved wrong at a crucial stage.

As an independent expert, the point at which I tend to get called in is when there are disputes over completion accounts. It is very common for the purchase price of a business to be dependent upon the final trading results of the business, which will only be ascertained after the deal has been done. The purchase price is therefore frequently conditional and subject to the final trading results. The completion accounts then become of pivotal importance.

In those situations the accounts are prepared by one side, usually the selling party, and then presented to the other side for comment. By its very nature the arrangement is adversarial. In the particular circumstance of a management buy-out there is the other element of an imbalance of power; the seller effectively controls the production of the figures and expects to be paid out on the basis of these figures.

Some of the areas of dispute are factual and can be settled relatively easily by an independent expert;

for instance, it is easy to check whether the accounts understate creditors, or fail to make provision for bad debts. The expert has the opportunity to look at the accounts, with detachment, at some remove of time, and will normally be able to settle those matters. The more difficult areas are those involving an element of judgement.

A particular area of concern is the apparent conflict between accounting principles and consistency. It is generally the case that the sale and purchase agreement will specify that the completion accounts will follow generally accepted accounting principles and will be drafted in a manner consistent with previous years. But what if it transpires that the accounts have been consistently prepared in a manner which is not in accordance with generally accepted accounting principles?

For instance, the business might be accounting for contract income in an idiosyncratic way. If it has applied its policy consistently, would it really be appropriate to change it in the completion accounts? After all, the purchase price has been agreed on the basis of historic accounts drafted upon the historic basis. The new management are free to change accounting policy going forward, but do they have a right to make a retrospective alteration to the completion accounts? There is no simple answer to this question.

It is issues such as this which makes the work of an independent expert so interesting. q • David Bunker is a chartered accountant and commercial arbitrator specialising in company shareholding and partnership disputes. He can be contacted at davidbunker@david-bunker.com.

HIPS are suspended THE RICS has welcomed the announcement by the new government that is has suspended Home Information Packs.

The background to the announcement was set out in a letter from Communities and Local Government Secretary Eric Pickles to Louis Armstrong, chief executive of RICS. In a statement RICS said: “HIPs have failed to address the significant problems in the homebuying process they were originally supposed to tackle and RICS is pleased that one of the first acts of the new government has been to abolish them. Taking a swift decision will have minimised the impact on the market and ensured that estate agents who stick to the rules will not lose out.

“The government must now use this opportunity to move on positive discussions about improving the homebuying process, working closely with the industry and professional bodies that have already done a lot of work on this issue.

There is now the opportunity to start again with a clean slate and come up with innovative proposals to reform the system.

“Rather than seeing the announcement as the death of HIPs it should become the start of a new process that brings real change to people's experience of buying a home.”

The government intends to make it a priority to repeal Part 5 of the Housing Act 2004, which covers Home Information Packs. q

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Contracts go head to head A QUESTION TIME-style discussion was held at Kings College London on 20 April to debate the relative merits of JCT and NEC contracts.

The event was chaired by Mr Justice Ramsey, the judge in charge of the Technology and Construction Court. The large audience heard a lively discussion on the differences between the contracts: specifically, the effect of the JCT and NEC provisions related to mutual trust and co-operation and good faith, why the forms are the way they are, assessment of matters during the works or upon final account, and the different approaches to completion.

The debate was hosted by the King’s College Construction Law Association (KCCLA) and the publisher Sweet & Maxwell.

JCT was represented by Professor Peter Hibberd, chairman of JCT and Peter Aeberli, a barrister, chartered architect and former joint secretary of JCT. The NEC was represented by Dr Jon Broome and David Thomas QC. The audience heard how over nearly 80 years the construction industry had developed a range of contracts through JCT to meet the various procurement needs and different apportionments of risks. JCT products are the direct result of the consultations between the supply and demand sides of the industry and set the standard for building contracts by reflecting practice and changes to practice and facilitating change.

By contrast, NEC sought to establish that it offered a different approach that was designed for use as a proactive management tool, but accepted that in a strictly legal sense it is found wanting.

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The question emerged as to whether one wanted a practice and procedure manual or a contract that would stand up to scrutiny. JCT contended that the principal purpose of a contract is to set out the rights and obligations and stand up to legal scrutiny; it was about certainty. It did not preclude the inclusion of procedure but felt that should not undermine the nature of the contract and generally matters of professional judgement are best left to professionals and not prescribed.

NEC’s attack centred primarily on what it saw as the outdated method of measuring or specifying building works in detail and the associated processes. JCT made the point that this was an attack on traditional processes and not on JCT, as JCT provides a wide range of contracts for use with different forms of procurement, including the novel approach adopted by JCT Constructing Excellence.

Although the chairman, Mr Justice Ramsey, drew out the point that there are those who are wedded to either JCT or NEC as both could be made to work, JCT contended that there will be those that will ask why we need another system when proactive management can work with any of the JCT contracts which the industry had already prepared and finetuned over the years.

According to the last RICS contracts-in-use survey – published in February – four out of five of all building projects, some 79.3%, use a JCT form of contract. By contrast, NEC contracts are used in 7.7% of building projects. q

Down on the farm – understanding the business AS A FORENSIC accountant I am often required to assist the court by expressing my opinion on the ‘might have been’: on the reasonable balance of probabilities, what would have happened to a business but for the interruption suffered – fire, theft of intellectual property, death or personal injury of the proprietor. The court has the duty to award a sum of money which, so far as money can, will restore the status quo ante: the position as it would have been but for the index event.

This is made clear in the leading case of Bradburn v Great Western Railway [1880] 5 App Cas 25 at 39, where Lord Blackburn, using quaint Victorian language, said this: “I do not think there is any difference of opinion as to its being a general rule that, where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.”

How does this apply in the case of a farmer injured in a road traffic accident, for example? The answer is, as with any business, that the expert accountant must thoroughly understand the business and apply his skills and experience to say how the status quo ante may be restored.

I can illustrate this with a farming case in which I was involved. A Welsh sheep farmer was injured and could no longer tend his flock. To mitigate his loss he might have been expected to sell the farm, but that would have been at a huge loss and the duty to mitigate must be reasonable only. Selling a farm which he could no longer work, and when land prices were down, would have been a step too far. So my opinion was that he should be awarded a lump sum to provide an annual amount enabling him to employ a farm labourer to do the heavy work he could no longer do – ‘buy’ him a man and the status quo ante would be restored. The judge agreed.

by CHRIS MAKIN With a personal injury or indeed any business interruption case, your expert must take the trouble to understand the business, and then – but only then – reach his opinion on what is needed to restore the claimant’s position. Similarly with valuations, a deep understanding of the business is essential. Looking only at the numbers on the annual accounts is unlikely to give the right answer! q • Chris Makin has practised as a forensic accountant and expert witness for 21 years, most recently as Head of Litigation Support at a national firm. He has been party expert, single joint expert, Court appointed expert and expert adviser in hundreds of cases, and given expert evidence about 70 times. He performs expert determinations, being on the panel of the President of the ICAEW, and accredited by the Academy of Experts.

He also practises as a civil and commercial mediator, and has mediated a vast range of cases, with a settlement rate to date of 80%. www.chrismakin.co.uk.

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Second generation luxury hybrid takes

a leap forward

LAUNCHED LAST summer, the RX 450h from Lexus marks another important step towards minimising environmental impact and maximising driving pleasure. It is a full hybrid SUV featuring Lexus’s second-generation hybrid drive technology.

Unlike mild hybrids, which use supplementary electric motor power simply to boost the performance of the petrol engine, the RX 450h is a full hybrid, capable of operation in both petrol and electric modes alone or in a combination of both. It delivers the energy-saving benefits of a series hybrid and the acceleration performance of a parallel hybrid system.

The RX 450h has the same intelligent four-wheel drive capability as its predecessor, the RX 400h, with a series/ parallel hybrid system employing a highly efficient 3.5-litre V6 Atkinson cycle petrol and two powerful electric motors working in tandem to provide an ‘intelligent’ four-wheel drive capability.

However, comprehensive enhancements to all the system’s components have dramatically improved efficiency, achieving a 10% increase in engine power and a 28% reduction in fuel consumption. In fact, when the RX 450h took part in the FleetWorld MPG Marathon last September, it returned an average 54.75mpg over more than 350 miles of driving on ordinary roads.

And outstanding fuel economy is just one dimension of the new RX 450h’s appeal. The vehicle delivers CO2 emissions of just 148g/km, far below the level achieved by any rival models.

The hybrid drive system combines distinct front and rear driving units, with a power control unit managing their seamless, high-speed interaction.

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The front drive unit is a series/parallel hybrid system featuring a 3.5-litre V6 petrol engine, a powerful electric motor, a generator, a high performance battery, a power control unit and a power split device with a planetary gear set to combine and re-allocate power from the engine, electric motors and generator as driving conditions require.

The rear unit provides four-wheel drive by means of a second electric motor and is mechanically independent of the front unit. The motor is activated and continuously adjusted by the vehicle dynamics integrated management (VDIM) system, working in conjunction with the power control unit.

Lexus targeted an advanced, yet user-friendly design for the cockpit of the RX 450h, with a focus on making key vehicle data and controls easy to access with minimum driver distraction. A key element in Lexus’s innovative approach is the new head-up display (HUD), which projects essential information on to the base of the windscreen, within the driver’s field of vision.

Using technology that was originally developed for use in fighter jets, HUD presents vehicle speed, turn-by-turn arrow navigation instructions, audio information and warnings from the adaptive cruise control (ACC) and pre-crash safety (PCS) systems. The system, provided as standard on SE-L Premium versions of the RX 450h, is easy to use and can be switched on and off. The display position and lighting intensity can be adjusted in line with ambient lighting conditions, using control switches alongside the steering wheel.

All these features are incorporated into a design that is everything Lexus has come to represent since the company launched the first luxury utility vehicle in 1998. q

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• £13,799 on the road • 0-60 in 8.4 seconds • Style pack available • 35.8mpg combined

Fun, fun, fun;

that’s the stylish, sporty TF

WHICHEVER MG TF you choose one thing that comes as standard throughout the range is a large grin the first time you pull the top down and take to the open road.

Sales of the iconic MG TF are booming and as the best value sports car on the road, it’s easy to see why.

Today a Birmingham-built TF 135 costs £13,799 on the road. Back in 2000 a similarly specified model would have been £19,735.

MG TF is all about driver satisfaction. A car that delivers nothing short of undiluted delight. It’s a pure sports car offering exciting, fun driving; yet it’s surprisingly practical with an easy-to-use soft top so summer showers are no problem. The N-series 1.8-litre engine is hugely responsive with a 0-60 mph time of just 8.4 seconds.

The newly launched MGTF 135 and MGTF 85th Anniversary models complement the MGTF LE500 thanks to their compelling price tags, new colours, new wheels, new trim and new ICE. The classic mid-engined rear wheel drive layout on all TF models delivers superb road holding and accurate, responsive steering. In short, great handling and great acceleration together with great feedback and turn-in through challenging bends. What’s more, the compliant suspension set-up means that long distance comfort and refinement never compromises sports handling.

Designed, engineered and built in Britain, the TF comes off the track at MG Motor UK’s Birmingham plant eager to please – which is another reason why sales are

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up by 67% this year.

Don’t be fooled into thinking that a sub-£14,000 sports car must be pretty basic, though. The TF is comfortable and well-equipped, with real attention to traditional sports car detail, such as the standard-fit solid alloy gear knob, alloy sports pedals and a twin two-tone air horn.

In addition there is a modern high-quality radio and CD player.

For a limited period, a 2010 ‘style pack’ is available, too, with leather upholstery, silver interior highlights and eye-catching ‘twist of pepper’ boron finish alloy wheels, all for just £700. That makes a Style Pack TF £14,499 on the road. If you want metallic paint, MG throws that in as a no-cost option. Beat that for value!

With the hood down on a nice sunny day the TF allows you to experience wind-in-the-hair driving, while the engine sips fuel at a leisurely 35.8 mpg (combined figure). And if the rain clouds gather, it takes just seconds to raise the hood, which has an integrated heated rear glass screen.

The TF is all about fun, but not at the expense of practicality. The boot was purpose-designed to take two sets of golf clubs and, being mid-engined, there is some additional storage space under the bonnet.

So the terrific TF offers a combination that no other car can: incredible value for money, economic driving, eyecatching design and a soft-top that is totally practical.

MG has thrown down the challenge to find any other car offering as much FUN for your money as its TF. q

Apple MG, Lion Business Park, Dering Way, Gravesend, Kent DA12 2DN T: 01474 358712 W: www.appledevelopment.co.uk Silverlink MG, Vroom Retail Park, Unit 7 Orion Business Park, North Shields NE29 7SN T: 0191 296 1162 E: sales@silverlinkspecialistcars.co.uk W: www.silverlinkspecialistcars.co.uk Luffield Cars, Belton Rd, Loughborough, Leics LE11 1LR T: 01509 216100 E: david@luffield.co.uk W: www.luffield.co.uk Spur Garage, 120 Bridge Rd, Hampton Court, East Molesey, Surrey KT8 9HW T: 0208 941 9848 E: chrishealey@spurgarage.seat.co.uk W: www.mg-spurgarage.co.uk Summit Garage, 413-415 Himley Rd, Lower Gornal, Dudley, W Mids DY3 2RA T: 01384 259555 E: sales@summitgarage.co.uk W: www.summitgarage.co.uk Graham Walker, 28 Bumpers Lane, Sealand Rd Industrial Estate, Chester, CH1 4LT T: 01244 381777 E: graham.walker@grahamwalker.co.uk W: www.grahamwalkerltd.co.uk

ywp131 evidence matters

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